00:01:09.000He's done an amazing job building one of the most powerful youth organizations ever created, Turning Point USA.
00:01:16.000We will not embrace the ideas that have destroyed countries, destroyed lives, and we are going to fight for freedom on campuses across the country.
00:01:29.000Welcome to this episode of the Charlie Kirk Show.
00:01:32.000Honored to have with us today a first-time guest, John Yu, who is a professor at University of California, Berkeley, but may I say one of the more enlightened individuals in the place, People's Republic of Berkeley.
00:01:44.000He has a terrific book out there, Defender in Chief, Donald Trump's Fight for Presidential Power.
00:01:50.000I highly recommend you go check it out and get a copy.
00:01:53.000And we look forward to learning from John throughout this podcast.
00:02:37.000Well, of course, Florida 2000 was about mail-in, but the legal issue at stake there is going to multiply all across the country if states go to complete mail-in balloting.
00:02:51.000I was a law professor back in the late 1990s, and I'd written an article I thought was obscure at the time, which was federal judicial court control or not over states.
00:03:04.000This was not considered an exciting topic back then, but then Florida 2000 happened.
00:03:09.000And the way to think of it is what happened.
00:03:12.000The reason the Supreme Court stopped the counting and recounting of all these ballots.
00:03:28.000He was by shooting a few holes in the ballots while he was at it.
00:03:31.000But the reason it stopped it was this.
00:03:35.000Elections in our country under the Constitution are the job of states.
00:03:39.000There's always the backup of the federal government if the states don't do their job.
00:03:44.000And what Florida was doing was that it was allowing each county to apply a different standard to what was a valid vote versus not a valid vote.
00:03:55.000And the country as a whole, if counties start having different rules about what counts as a mailed-in ballot that's legitimate and a mailed-in ballot that's not legitimate, for example, here's one justice.
00:04:05.000When does it have to be postmarked by?
00:04:09.000Under Bush versus Gore, if a state allows counties to have different standards, that's a violation of the right of the candidate Donald Trump.
00:04:18.000And so what you could see is all these counties applying whatever standard they feel like, trying to do it for advantage so that Biden wins the election here or Trump wins the election there.
00:04:28.000And Trump's going to have to sue all of these states to say, no, there has to be one standard.
00:04:34.000Say it all has to be received by the state by the election day, or it has to be postmarked by a certain day, but it has to be the same standard.
00:04:41.000You can imagine if it's, that's the future of having the election in person all on the same day, all at the same time.
00:04:49.000Mail-in allows for this kind of abuse where votes are going to mean different things in different places in the country.
00:04:55.000That's what the Supreme Court said in 2000 when it said, Florida, you have to stop counting because counties are cheating.
00:05:02.000And you could see that happening, but all across the country now, not just in Palm Beach County in Florida.
00:05:08.000Yeah, so if I can ask an obvious question for myself, the answer is not obvious, but I think it would be obvious to you.
00:05:14.000Is the federal government able to set any standards at all to how votes are counted?
00:05:18.000I mean, at least citizens, for example, right?
00:05:28.000It says states are the ones that set the time, place, and manner of elections, but subject to being overruled by Congress.
00:05:37.000So the federal government can step in, pass a law, and say elections have to be run a certain way.
00:05:43.000Mail-in votes have to be counted a certain way.
00:05:46.000The second way is the federal courts, because a candidate's right to a fair election is being violated.
00:05:54.000The rights of the voters to having their vote count equally with another mail-in ballot, they also have a constitutional right.
00:06:02.000They can sue in court the voters and the candidates and get a court to enter, a federal court, a judge to intervene in a state election, and the state, I'm sorry, the state running an election if the courts think it's unfair.
00:06:15.000And we used to think courts would never do that.
00:06:18.000But Florida 2000, Bush versus Bohr, was a good example where the court said what the counties were doing there was so outrageous that they were going to intervene and take over the standard for counting the ballots.
00:06:31.000So what potentially could be happening then is every state has a different way of doing mail-in voting this November, right?
00:06:38.000So as we are seeing sometimes some projections out there, say 10 to 15 to 20 percent, even upwards of 30 percent of the population could be doing mail-in voting.
00:06:48.000Each state then has to decide exactly how that is counted.
00:06:51.000This is going to be a legal disaster, right?
00:06:54.000I mean, the Joe Biden campaign has 600 attorneys, I think, retained, and that's just the beginning of some of the lawyer army.
00:07:02.000Can you walk through how these, how confusing this can be and how big the stakes are on the legal side of this?
00:07:11.000Well, think about this, as we saw in Florida, unless the election results are clear in the battleground states, the election results themselves may not be known on that Tuesday in November because you're going to have litigation.
00:07:26.000You have lawyers pouring over all the ballots, the mail-in ballots.
00:07:30.000They're going to fight over whether they've been signed or not.
00:07:32.000They're going to fight about when they were received or not and how they got there.
00:07:37.000There's going to be litigation on that.
00:07:38.000So a lot of those mail-in ballots may not be counted right away.
00:07:42.000It would go days and days and days after the election, which means just like in Bush versus Gore, we may not know who won the election for weeks and weeks after the thing is over.
00:08:04.000You can think of all the kinds of abuse that might go on.
00:08:07.000Ballot stuffing could easily go on because of mail.
00:08:11.000And here's another example Trump lawyers could sue about, which is how did you prove that that ballot actually was cast by that person?
00:08:21.000You multiply that by the hundreds and hundreds of thousands of people.
00:08:24.000How are you going to have enough time to check them all?
00:08:27.000So I think this could mean, suppose this happens in places like Pennsylvania, Michigan, Wisconsin, and those, suppose they're close again like they were four years ago, and there's irregularities at the county level, then you could see Trump and Biden both suing, and that could throw the election result into doubt.
00:08:46.000And it might take, you might remember Florida 2000, we didn't have actually a final end to it until the middle of December.
00:09:35.000And then at the last minute, he refused to and plunged us.
00:09:38.000Because in the end, it turned out that Florida, we counted actually all the votes afterwards.
00:09:43.000It turned out that Florida had voted for Bush.
00:09:46.000Yeah, and I'm afraid that we might be headed to another legal fight.
00:09:50.000Could we talk more broadly about the assault on the rule of law?
00:09:53.000It seems right now that there's a kind of a collision right now between two different types of ways to interpret the Constitution, the more textualist interpretation or the more judicial activist interpretation.
00:10:09.000And it seems it depends on what circuit you're in and what city you're in.
00:10:14.000And the laws almost seem as if they're completely and totally different than the same country.
00:10:19.000I know a lot of our listeners are outraged.
00:10:21.000It seems as if there's a complete and total double standard as the application of law.
00:10:25.000What's your analysis of this, especially in the last couple months?
00:10:28.000A great example would be the early release of prisoners in California, 18,000 people being let out of prison, yet pastors are being threatened to be arrested all across the state of California.
00:10:40.000What is your thought on the kind of the assault of the core fabric or the rule of law in our country?
00:10:44.000Well, the most obvious one, I think, is the treatment of Donald Trump.
00:10:48.000And you mentioned I have this book out, Defender in Chief, about Donald Trump's constitutional fights.
00:10:54.000I originally was a Trump skeptic four years ago, but I saw what the people who hated him so much, they wanted to bring him down so badly.
00:11:03.000They were willing to, as you say, twist the rule of law in order to get him.
00:11:08.000And I'll say, I'll give you some examples.
00:11:11.000It's his opponents, not Trump, that wants to get rid of the Electoral College, the way we've picked presidents for over 220 years.
00:11:17.000It's his opponents who talk about stuffing, you know, packing the Supreme Court with six new justices, which would be a direct assault on the rule of law, changing the number of judges just until you get the outcome you want.
00:11:29.000We've talked about impeaching Brett Kavanaugh after he's already gotten on the court.
00:11:34.000Who talk about independent counsels who are going to criminalize our politics and use investigations against political enemies, who want to nationalize the energy and transportation sectors for a grand new deal?
00:11:46.000So that's just one area is the way people on the other side want to pull down all these constitutional rules we have used to govern ourselves, I think quite successfully for 200 years, just to get President Trump.
00:12:03.000And then the other thing, directly, there's some of the examples you mentioned then.
00:12:06.000At the state level, you have governors and mayors who are directly trying to resist constitutional orders, federal orders.
00:12:17.000To give you an example, the disorder in our cities.
00:12:21.000Cities and states are the ones who are in charge of public health and safety.
00:12:25.000But you have mayors in Portland and Seattle who are refusing to do their duty, who sometimes themselves are part of the mob, who are attacking federal buildings.
00:12:34.000It's a rare thing, but unfortunately, Washington, D.C. has to send in law enforcement or even troops into these cities in order to restore the rule of law.
00:12:43.000I actually, the only two times I can think of cases where city and state leaders stepped aside and just let lawlessness reign.
00:12:52.000One was in desegregation when the Southerners fought the Supreme Court's decision of Brown versus Board of Education.
00:13:00.000The other one was the Ku Klux Klan right after the Civil War.
00:13:04.000Mayors, governors just stepped back and let these groups attack the freed slaves.
00:13:08.000And Ulysses S. Grant actually had to send troops into the South to restore law and order.
00:13:15.000And I think that's a direct assault on the rule of law.
00:13:19.000And I think, unfortunately, you don't want to see it all the time, but unfortunately, federal law enforcement have to come in and restore because for the rights of the inhabitants of those cities.
00:13:29.000Yeah, and it's so incredibly Orwellian because they say that Trump is attacking the rule of law.
00:13:34.000And I say he's upholding the rule of law.
00:13:39.000You have Portland burning for 80 days straight.
00:13:41.000You'd think there'd be some involvement, some need to bring in federal assistance.
00:13:45.000One legal question I have, John, and maybe you can help me walk through this, is I don't like executive orders very much, to be honest with you, especially executive orders that I think centralize power too much.
00:13:58.000And maybe you might have a different opinion of this because you wrote a whole book on it.
00:14:03.000Specifically, I'm talking about the recent executive order about the unemployment benefits and the checks to Americans and the stimulus checks.
00:14:19.000I think it's brilliant politically, and I support the president.
00:14:22.000I'm just afraid that under a future liberal administration, which is inevitably going to happen sometime in the future of our country, they can reappropriate funding under some emergency clause of climate change or something to put forth their agenda.
00:14:36.000Can you explain this recent executive order that the president put forward, why it's constitutional, what gives him the right to do it?
00:14:48.000A smart question, very smart question, and something people should be worried about because you don't want President Biden saying, I'm going to issue executive orders to stop global warming, as some people suggested during the Democratic presidential campaign, nomination campaign.
00:15:05.000So actually, this is part of the reason I wrote my book was because if you were just listening to the regular media, read the newspapers, you would think President Trump had just seized the power of Congress and upset the constitutional order.
00:15:21.000But if you actually look at what he did, he only suspended the payroll tax.
00:15:26.000He didn't say he was going to forgive it.
00:15:30.000He only spent money that Congress had already appropriated for the extension of the benefits.
00:15:38.000If you look carefully, all of this was in the CARES Act.
00:15:41.000Now, I think maybe Congress rushed to judgment in passing the stimulus programs.
00:16:04.000If the president declares a national emergency, which everyone was saying, even if you listen to Biden and Pelosi, he didn't call it fast enough.
00:16:12.000Then he's allowed to access these billions of dollars that Congress and the CARES Act just put into the pot.
00:16:20.000Now, compare that to what President Obama did in DACA.
00:16:56.000Presidents used to issue executive orders to explain how they would enforce the law, how they're going to carry out what Congress wants to do when they pass a criminal statute, for example.
00:17:08.000I think President Obama is the first president in history who just said, and this is so different than Trump, right?
00:17:12.000Trump is just carrying out Congress's delegation.
00:17:16.000Here, President Obama said, yeah, I have a duty to carry out the laws.
00:17:20.000That's what the chief executive power is to execute the laws.
00:17:22.000But here he said, I just disagree with those laws, so I'm not going to do it.
00:17:28.000That's really the seizure of constitutional power.
00:17:30.000So the thing I find ironic is you have all these liberals attacking Trump for what we've just been talking about, the extension of unemployment or the suspension of peril taxes.
00:17:41.000I didn't hear any of them attacking President Obama for DACA.
00:17:45.000And if they were going to be consistent, they ought to be against both, but they're not.
00:17:49.000You said that very well because even I looked at it and I said, how does he get the power to do this?
00:17:54.000And I'm sure there was someone in the White House Counsel's office that designed it, of course, under an interpretation.
00:18:00.000But the way you just described it is really perfect because it was appropriated by Congress to be able to suspend taxes and reallocate already allocated monies.
00:18:08.000It wasn't as if President Trump, you know, all of a sudden said, I have the power of the purse.
00:18:12.000I'm able to decide that we are going to allocate money as if it originates.
00:18:17.000All spending bills must originate in Congress.
00:18:19.000I think in the House, if I'm not mistaken, constitutionally.
00:18:22.000And so the press or you listen to the news because they won't just assume Trump is, I guess, part of the story.
00:18:29.000It's the Trump's critics who are the ones who are really misrepresenting what's in the Constitution.
00:18:35.000They're the ones that are saying that he is the one that is assuming all this power.
00:18:39.000And in reality, they're the ones that have been the ones doing it previously.
00:18:43.000I want to get into critical race theory.
00:18:45.000This is something that is very pervasive amongst the kind of academic circles.
00:18:53.000Do you get questions about this ever amongst some of your peers at Berkeley?
00:18:57.000And kind of the new idea of law now is it should try to be blind.
00:19:04.000A lot of people believe justice should not be blind, but instead that the rule of law is kind of needs to be put aside and the preferences of trying to rearrange society as they see fit should be the primary concern.
00:19:14.000Charlie, you're some kind of troublemaker trying to get me fired, aren't you?
00:19:22.000Look, you know, all these things we're seeing around the country now, 1619 project, the claim American society is fundamentally oppressive and racist.
00:19:33.000You know, the claims for reordering of our economy.
00:19:38.000Everybody in the country now is like Berkeley.
00:20:17.000And so then extreme measures must be taken to root it out.
00:20:21.000And so, as you say, affirmative action in our universities is a great example.
00:20:26.000None of the people, very few, if any, of the people benefiting from affirmative action now are the ones who suffered the harms of segregation or of slavery.
00:20:36.000If there are some still left, then they have a right to some kind of remedy.
00:20:40.000But most of the people today, right, those are not those people.
00:20:44.000Why should they get any kind of extra benefit compared to other people?
00:20:50.000That is judging people on the basis of their skin color.
00:20:57.000But critical race theorists think we're all racists.
00:21:00.000So if we're all racist, what's wrong with using race to benefit your side rather than their side?
00:21:05.000It's really a grab for political power rather than really an effort to make up for past racial injustices, I think, because many of the people who are in the country now had nothing to do with slavery or Jim Crow, or in fact, might have, you know, some of them may be the descendants of people who put an end to those terrible rules.
00:21:29.000So that's what I actually think it's in some ways very Marxist in origin because Marxists think that a lot of society's traditions and institutions are really instruments of oppression by some kind of powerful elite that doesn't want the common person to have their fair chance.
00:21:58.000If American society was so bad and so racist, why are tens upon tens of millions of people waiting in line to get in?
00:22:06.000The reason why is because no matter what Americans' historical sins are, we've corrected for them.
00:22:11.000There's what other country would willingly commit to the Declaration of Independence and try to make society better all the time and has succeeded in making itself better to the point where I think if you're you know if you're a minority, it's way better to be here than most other places in the world.
00:22:29.000And that's why if people think it's such a racist country, you don't see them trying to move to Mexico or China or France.
00:22:36.000All the people in the world want to come here because it is objectively much better here.
00:22:51.000It's so funny because you said something that I can resonate with.
00:22:55.000You say, yeah, when people are like, what's happening to our country?
00:22:58.000I'm like, the whole country has become a college campus.
00:23:00.000Now you see what I have to deal with whenever I go and visit.
00:23:03.000People are afraid to hear the other side.
00:23:05.000It's all about critical race theory and postmodern ideas and lifting up these ridiculous, deconstructionist, disintegrationist philosophies.
00:23:14.000And it's just so incredibly pernicious if it's not challenged.
00:23:18.000So kind of looking at the landscape, can you comment in the couple minutes we have remaining on how President Trump, and you talk about this in your book, the significance of what he's done through the circuit courts, Ninth Circuit Court, Kavanaugh, Gorsuch, the amount of justices and the type of justices that he has instituted.
00:23:37.000This is something I don't think gets talked about enough.
00:23:40.000You understand the law extraordinarily well.
00:23:43.000For our listeners, can you help fill them in on how historic the president has been on this specific issue?
00:23:49.000First, remember that when President Trump ran against Hillary Clinton, there was a vacancy on the Supreme Court caused by the death of Justice Scalia.
00:23:58.000And just imagine what would have happened if Hillary Clinton had gotten to fill that seat.
00:24:03.000There are already four solid justices who are liberal on the court who always vote together.
00:24:09.000And they fundamentally believe that the courts should be an engine for progressive social change, who want to achieve all those goals of all the postmodernists you were just talking about.
00:24:21.000That is the best description I've heard.
00:24:23.000I have to say, I want you to finish, but an engine for progressive social change, the courts.
00:24:29.000Because if you're a critical race theorist and you think society is structurally racist, well, then the courts should be used to pull us out of it.
00:24:39.000So remember, for first, so one thing is just by denying that to Hillary Clinton, Trump already had won half the game.
00:24:46.000But then he filled it with Neil Gorsuch, and then he filled a new opening with Brett Kavanaugh.
00:24:52.000The actual reason the court is not being as strongly conservative as we would like is because of Chief Justice John Roberts, who has been voting a lot with liberals lately.
00:25:02.000But that also ignores, as you said, Charlie, what's going in the lower courts?
00:25:06.000You know, most cases never get to the Supreme Court.
00:25:09.000They only hear about 60, 70 cases a year.
00:25:11.000Most of the law in the country is made by the courts right beneath them, what we call the circuit courts, the appellate courts.
00:25:17.000And Trump, I have to say, I've been involved with Republican administrations and Republicans in Congress.
00:25:23.000I worked in Congress too, for, you know, since Bush versus, since before Bush versus Gore, I have not seen a Republican president appoint such a deep bench of conservative superstars as Trump has.
00:25:36.000He way outdoes George W. Bush and President Reagan.
00:25:41.000That's the bench for the next set of Supreme Court justices.
00:25:45.000Those are the ones who are going to develop the theories that will be applied, conservative theories that will be applied in the future.
00:25:50.000And Trump, I think Trump has a record that surpasses any president in American history trying to appoint judges who believe the Constitution should be based on what those who ratified it and wrote it thought, and that the role of the judiciary should be a modest one.
00:26:12.000I mean, just the Ninth Circuit came out recently because of President Trump's appointments on ammunition capacity, saying that ammunition limits of more than 10 rounds are unconstitutional.
00:26:22.000The Ninth Circuit, I mean, if you try to judge shop and go around and try to find a judge to fit your, you know, your agenda, you usually would go to the Ninth Circuit.
00:26:33.000That's like candyland for social justice, right?
00:26:36.000I mean, you couldn't think of a better place to try to change the, you know, change America in their image.
00:26:41.000Now, the social, you know, the social insurrectionists, they don't want, they're like, I don't know, the Ninth Circuit, it might not be the best place for us because of President Trump.
00:26:50.000Can you just talk more about your book?
00:26:55.000Four years, Trump has just brought the courts into a rough balance.
00:27:00.000If he were to win a second term, then the courts would be really, really remade into conservative, you know, really conservative courts.
00:27:10.000Right now, with the magazine decision, got kind of lucky in the assignment of judges.
00:27:15.000It's even, even mostly, in most of the country.
00:27:18.000It would take a second term to really lock in those gains.
00:27:22.000Well, and that's everyone listening to this, that is just reason enough to go get President Trump re-elected is the rule of law and judges.
00:27:29.000That's my children's children that will live under the implications of these decisions for generations to come.
00:27:35.000Can you just tease your book a little bit more?
00:27:37.000We'd love to continue to drive traffic to it.
00:27:40.000Anything we didn't talk about, just some of the big ideas you argued for, and you talked about why you wrote it, but I just would love to have you comment more on your book.
00:27:49.000Just really quickly, what I tried to think of was to tie together all the fights President Trump's been having over these last four years and try to take a step back and explain the sort of bigger constitutional fight that's going on.
00:28:02.000And what I think it is, and people could disagree, but what I think it is, is if you look at impeachment, if you look at the Mueller report, if you look at some of the things we've been talking about, what you have is the 20th century's progressive government put into place by FDR and LBJ, and then Obama is sort of at the highest point, is fighting to resist the people's ability to control the government by electing a president that then takes command.
00:28:36.000It's really an effort by the bureaucracy that doesn't want to be controlled, that thinks that it has the right to decide who's fit to be president or not.
00:28:45.000It thinks that it should be independent, that they're experts.
00:28:50.000Our Constitution that the framers created in the 18th century was we elect the president, we elect members of Congress, and they control the government.
00:28:58.000That's the way the people control the government is through, there can't be any independent technical experts.
00:29:05.000But if you saw, that's what happened with the collusion investigation.
00:29:08.000That's what happened with impeachment, right?
00:29:09.000This was the Foreign Service was revolting against an elected president.
00:29:15.000And maybe that also, you know, you hear some people saying, what's Trump's second term agenda?
00:29:19.000I think that might be the agenda, which is, okay, he's been fighting defense for four years against this sprawling bureaucracy.
00:29:25.000If he wins re-election, he can finish the job of making sure we the people, through the president, through our members of Congress, control what our government does rather than the government controlling what we do.
00:29:39.000That is true representative government.
00:29:41.000And that is really said, really well said.
00:29:43.000The book is Defender in Chief by John Yu.
00:29:46.000John, we really enjoyed having you on the Charlie Kirk show here.
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