00:00:07.000We don't agree on everything, but boy, do we agree on First Amendment rights, free speech, the Constitution, and the need to protect civil liberties.
00:00:16.000We have a conversation about Trump's impeachment.
00:00:22.000Was the Capitol riot a terrorist attack?
00:00:26.000We talk about Israel, social media, and so much more.
00:00:28.000It's a pretty comprehensive discussion.
00:00:30.000Email us your questions, freedom at charliekirk.com.
00:00:33.000And this bonus episode brought to you on the Charlie Kirk Show podcast feed is thanks to those of you that support us at charliekirk.com slash support.
00:01:11.000His spirit, his love of this country, he's done an amazing job building one of the most powerful youth organizations ever created, Turning Point USA.
00:01:20.000We will not embrace the ideas that have destroyed countries, destroyed lives, and we are going to fight for freedom on campuses across the country.
00:02:24.000They know he's not going to testify, and they want to be able to say, see, aha, we asked him to testify.
00:02:29.000He said, no, he must have something to hide.
00:02:32.000No responsible lawyer would allow the president to testify and walk into a perjury trap in front of hostile senators and hostile house managers.
00:02:41.000So you can be sure he's not going to testify.
00:02:43.000You can be sure Jamie Raskin is going to make a big deal out of it.
00:02:50.000It seems like a PR stunt more than anything else.
00:02:52.000And I don't think the president will show up.
00:02:55.000And so I've read some of your articles recently pushing back the idea of this second impeachment.
00:03:01.000Can you walk some of our viewers and listeners through why you think this entire idea of impeaching a private citizen does not follow the founders' original intent of what impeachment was supposed to be used for?
00:03:12.000Well, you don't have to listen to me, listen to James Madison, who's the father of the Constitution, who he said that impeachment is only for somebody who's still sitting in office.
00:03:21.000He said it quite clearly in the Federalist Papers, and there's no way around that.
00:03:26.000The text of the Constitution is clear as well.
00:03:28.000It says impeachment is for purposes of removing a president.
00:03:31.000Once a president is removed, you can also vote to disqualify him, but disqualification doesn't stand alone as a remedy.
00:03:39.000If it did, then the Congress would have a roving commission to go through the entire United States and decide who to impeach, who not to impeach, and who to prevent from running for office.
00:03:48.000Say the Republicans come up with a young, vibrant candidate to run against Biden four years from now.
00:03:54.000All the Democrats have to do is impeach him, even though he's never held office, and just disqualify him from running for office or find somebody who ran for a who had a smaller office, an earlier office, and they can impeach him.
00:04:08.000That's not what the framers had in mind.
00:04:10.000What the framers had in mind is not allowing the Senate to put people on trial.
00:04:39.000And the one point you just made that I hadn't thought of is: you're right, it could be used as a political ploy to prevent future political opponents from entering into elections in general, if that's now the precedent, which I think is a really, really interesting point.
00:04:54.000It means that several hundred members of Congress determine who runs for president rather than primaries and elections.
00:05:00.000It would deprive hundreds, millions of people of the right to vote.
00:05:06.000It's not what the framers had in mind.
00:05:08.000And so, without getting into the intentions or the motives of the people pushing this impeachment, I think politics obviously plays a role.
00:05:17.000Can you help explain why the Supreme Court justice is not showing up?
00:05:23.000Since he's not showing up, does that render it unconstitutional just from the beginning?
00:05:27.000And does the Chief Justice have a decision here of whether or not he can take maybe a challenge to this in the Supreme Court in the future?
00:05:38.000Well, the Chief Justice has made a decision.
00:05:40.000He made a decision that it would be inappropriate for him to sit because the impeachment is not of a sitting president.
00:05:47.000And the Constitution says that the Chief Justice sits when a president is impeached.
00:05:53.000So the Chief Justice made the right decision.
00:05:55.000I predicted he would make that decision.
00:05:56.000So far, all of my predictions have turned out to be valid because I don't make predictions based on wishful thinking.
00:06:02.000I make them based on a constitutional analysis.
00:06:06.000And I think that has to be given some weight.
00:06:08.000Whether or not the Supreme Court, as an institution, would get involved in this decision remains to be seen.
00:06:14.000If the president were to be disqualified, he could then challenge that in court, or he could ignore it and simply run for president again if that's what he chose to do and leave it to the other side to bring a lawsuit to disqualify him.
00:06:29.000So one of the charges that they are putting against the president, both in the impeachment papers and also in the court of public opinion, is that the president incited the mob.
00:06:42.000You mentioned that this is constitutionally protected speech.
00:06:44.000You wrote a very interesting piece where you said the president did not yell fire, obviously using the example that people oftentimes cite of yelling fire in a theater.
00:06:55.000Can you tell us why the president was well within his First Amendment rights to say what he said and the speech that he gave and why that is not incitement?
00:07:04.000Well, you wouldn't know from listening to CNN, you wouldn't know from listening to PBS that the president used the words peaceful and patriotic, just like you wouldn't know when the president spoke in Charlottesville that he said, I'm excluding Nazis and white supremacists and white nationalists from my statement.
00:07:35.000Moreover, incitement has a technical meaning.
00:07:37.000It has to call for immediate, imminent violence.
00:07:40.000If he had stood in front of the Capitol and said, now break in and destroy and steal Pelosi's laptop and kill policemen, that would be incitement.
00:07:50.000But advocacy is protected by the Constitution.
00:07:55.000There are cases involving communists who advocated the violent overthrow of the government, and that was held to be constitutionally protected speech.
00:08:03.000Or the Brandenburg case, where a neo-Nazi Klansman called for violence, and he was surrounded by people with guns and with crosses and with Ku Klux Klan paraphernalia.
00:08:16.000And the Supreme Court nine to nothing found that to be constitutionally protected.
00:08:20.000Even the ACLU, which favors the impeachment, has said that the speech itself was constitutionally protected.
00:08:29.000Is there a set of cases, maybe you just mentioned them, that might be precedent to show that there is a speech and then something that came after that speech that goes to show that the actions of the people that might have participated in the speech were done on their own volition.
00:08:48.000Lots of such cases, and I litigated some of them myself.
00:08:51.000I was one of the lawyers in the Chicago 7 case.
00:08:53.000And in the Chicago 7 case, people stood and screamed and yelled for blood and for violence and everything.
00:08:59.000And yet the courts held that that was constitutionally protected.
00:09:02.000And the ACLU said that was constitutionally protected.
00:09:06.000You get speakers, radical speakers, all the time on the left and on the right calling for action.
00:09:12.000One of the cases I had back years ago, I represented a Stanford University professor who stood a few hundred yards away from the Stanford Computation Center and said the computation center is a source of war in Vietnam.
00:10:06.000It's so refreshing, Professor, to hear you say that, because there seems to have been a non-stop barrage that is making the argument that anyone that used typical political speech, even as simple as go fight for your values, as if that is directly inciting violence, which is something that is used quite often.
00:10:39.000In fact, President Trump's speech, which I disapprove of personally, I think he shouldn't have done it, was pablum compared to some of the speeches I've defended and some of the speeches that I've seen people make in the Capitol itself and certainly in other venues as well.
00:10:55.000So I'm curious, you mentioned the ACLU approved of not approved of the speech, but they thought it was constitutional, but they approve of the impeachment.
00:11:02.000I'm just curious, what reasoning do they have for that?
00:11:07.000Well, they regard impeachment as an employment decision.
00:11:10.000Their argument is as follows: that since a federal employee can be fired by the president, and this is in the brief also of the House managers, since the president can fire a cabinet member for statements he made that are part of constitutionally protected statements, then it follows that Congress can impeach the president for that.
00:12:09.000What if Congress impeached a president because that president was Muslim?
00:12:14.000And the defense was: no, the Constitution says no religious tests shall ever be required.
00:12:19.000The ACLU and the House managers would say that's irrelevant to impeachment.
00:12:23.000Of course, it's not irrelevant to impeachment.
00:12:25.000Impeachment must be based on constitutional grounds.
00:12:28.000And the First Amendment prohibits any consequences by Congress for a constitutionally protected speech.
00:12:35.000And so, therefore, the entire charge of impeachment surrounds the speech.
00:12:40.000It's all about the speech then and whether or not it was constitutionally protected or not, which is the case you've made from the beginning.
00:12:47.000So, some of the people that have been indicted who have stormed the Capitol, there's some new stories that are coming out that they might be charged for sedition.
00:12:59.000Quite honestly, I don't really know what that legally means.
00:13:03.000Have you ever been involved in a case around sedition?
00:13:07.000How does one get charged for sedition?
00:14:36.000Thomas Jefferson wrote a letter about that in 1801, in which he's asked that question.
00:14:43.000And he said, under the American approach, you go after the actors, not the speakers.
00:14:47.000The speakers can speak, and the actors should be punished because at the first breaking of the law, the law steps in and punishes the illegal actors.
00:14:56.000The Constitution distinguishes between illegal actions and speech and it protects speech.
00:15:02.000And so what is now unfolding, it seems, is a sequence of investigations and indictments to see whether or not there was conspiracy.
00:15:12.000Now, conspiracy is obviously different than sedition.
00:15:16.000So conspiracy would be, and you would obviously know it better, two or more people working together to commit a crime or to do something.
00:15:28.000There has to be an agreement for there to be a conspiracy.
00:15:31.000And obviously, the president didn't agree.
00:15:33.000He told people to engage in peaceful and patriotic protests.
00:15:36.000He didn't tell them to break into the house and to kill a policeman or do anything like that.
00:15:41.000So there's no way in which the president could be charged as part of a conspiracy.
00:15:45.000If other people arranged in advance to do this, even in advance of the president's speech, that also undercuts the theory that it was the president who incited people to do it.
00:15:55.000They would have done it anyway, even if the president had never spoken, which I wish he had not.
00:15:59.000And there's more and more evidence pointing to that, such as the pipe bombs that were placed the night before, people that came with military gear and walkie-talkies and with text messages that showed the intent to engage in that, which would go to show this was not just an event gone wrong.
00:16:17.000There might have been elements of that, but it might be actually more complicated than that.
00:16:21.000And so, something, Professor, I want to talk about, and you've been amazing on the issue of civil liberties for years.
00:16:27.000In fact, I think you've been the most consistent voice on this, is where this might lead us in regards to domestic surveillance.
00:16:34.000It seems as if that there are more and more calls because of what happened on January the 6th for almost a new, more robust, modern era Patriot Act.
00:16:43.000Is this something that we should be concerned about?
00:16:45.000Do we have enough laws on the books to already fight domestic terrorism?
00:16:49.000We have too many laws on the books, and we don't need more laws on the books.
00:16:53.000We have all the authority we need to fight against both domestic terrorism and international terrorism.
00:16:59.000We need more coordination between branches of the government, and I think we'll see that now.
00:17:04.000But the last thing we need is more FISA court warrants, more FBI misstatements about facts so that American citizens are subject to unconstitutional surveillance.
00:17:22.000Free speech is first among the civil liberties.
00:17:25.000And the idea that so many people on the left and so many liberals and so many Democrats are prepared to sacrifice civil liberties in the long run in order to pile on and get Trump in the short run.
00:18:18.000It's the left that has always been victimized by government over action.
00:18:24.000I grew up during McCarthyism, where it was the left that was attacked.
00:18:29.000Today we're seeing the left with very short memories being willing to forfeit their own civil liberties.
00:18:37.000A great philosopher once said, he or she who forgets the lessons of history are doomed to repeat them.
00:18:42.000And if they are going to repeat them, it will be turned mostly against the left, not against the right.
00:18:47.000And so I think many on the left are shooting themselves in the foot and they're forgetting about long-term implications of what they are doing.
00:18:56.000They're creating loaded weapons lying around to be used against them in years to come.
00:19:02.000Yeah, it's puzzling, quite honestly, Professor, because I remember in the early debates of the Patriot Act, it was people on the left that were the ones that were challenging it.
00:19:11.000You were challenging it from a civil liberties standpoint, but even people such as Senator Bernie Sanders was against the Patriot Act because he was afraid it was going to be used against socialist groups or left-wing advocacy groups.
00:19:27.000And that whenever you give that kind of force to government and any sort of disagreeable group might pop up, don't be surprised when that force might be used against that disagreeable movement.
00:19:40.000Well, we all remember the great German Lutheran philosopher who said, when they came for the trade unionists, I didn't complain because I was not a trade unionist.
00:19:51.000When they came for the Jews, I didn't complain.
00:19:53.000Then when they came for me, there was no one left to complain.
00:19:58.000You know, we can have civil liberties for me, but not for thee.
00:20:02.000Because when you deny anybody civil liberties, it establishes a precedent that will come back and be used against you.
00:20:07.000And that's what's so, so dangerous about what short-sighted liberal Democrats and people on the left are doing today.
00:20:14.000And why I, as a civil libertarian who has always associated myself with the liberal wing of the Democratic Party, feel so strongly against what the Democrats are doing today because they're so short-sighted.
00:20:25.000I understand their desire to get rid of Trump and to pile on, but I don't understand why they're prepared to compromise civil liberties, which will eventually be used against them.
00:20:36.000So, Professor, an argument that some of the liberals will use that I encounter is they say, well, this is just one exception.
00:20:47.000I'm sure you encounter this argument from some of your liberal friends where this is what's the best way to respond to that for the liberals that are watching this because they're saying we've never seen anything like it.
00:20:59.000Now's the time to use every tool at our disposal.
00:21:02.000Well, you've heard that throughout our history.
00:21:04.000We've never seen anything like communism.
00:21:37.000And I've talked to some of these reporters privately.
00:21:39.000They really are scared that if we don't do more, that there could be uprisings throughout the country.
00:21:45.000I also think that they don't look at unintended consequences, that if you continue to use terms like terrorist or try to label half the country as the worst thing imaginable, it might actually create more radicalism, not less.
00:21:59.000You know, you're someone that defends freedom of speech in every form or fashion, regardless of whether or not you agree with it.
00:22:07.000Can you talk about how speech is actually the remedy to some of the rising radicalism in our country, that radicalism might actually be growing because we're talking to each other less?
00:22:18.000I think we're becoming a nation of extremists and we're having fewer conversations.
00:22:23.000I'm writing a book now about the golden age of freedom of speech, which was from the end of McCarthyism, say 1960, to the beginning of the 21st century, where the vast majority of expansions of freedom of speech occurred.
00:22:35.000It was also the golden age for civil liberties, for civil rights, for women's rights, for gay rights.
00:22:41.000So I don't think there's any inconsistency between a fulsome approach to free speech and a fulsome approach to other rights, including environmental rights.
00:22:50.000I think when you start taking away free speech rights, you're going to see a diminution in other important values.
00:22:56.000So people who say, well, we support free speech, but we prioritize the environment over free speech.
00:23:19.000But it was Justice Brandeis who warned us 100 years ago that the greatest danger to liberty lurks in well-meaning people, people with good intentions, with zeal, but without understanding.
00:23:31.000And that's, I think, what we're seeing today.
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00:24:43.000Professor, can you help respond to something a lot of the students we deal with hear a lot of, which is that speech is violence?
00:24:50.000You touched on this a little bit, but this is something that's growing in the university.
00:24:54.000And it almost as if this university narrative has now gone all the way to Congress.
00:24:59.000It's gone from the campuses to Congress.
00:25:02.000That not just what the president said, but the guy that might not have stormed the Capitol, but he might have been a thousand feet away, or he might have just been on social media saying something they didn't like, that that then turned into violence.
00:25:14.000From less of a legal standpoint, but just more of a either a philosophical or a pragmatic one.
00:25:21.000Can you talk about how dangerous it is to equate public speech then with violence?
00:25:26.000Because that is something that seems to be catching on quite a lot.
00:25:29.000And especially now as we see the reaction to what happened on January the 6th.
00:25:45.000When they say that they feel unsafe because Professor Ron Sullivan is the dean of a college at Harvard and he represented Harvey Weinstein, they're lying through their teeth.
00:25:55.000Ron Sullivan, for example, had represented a mass, a murderer, a man who had killed two people and was horribly violent.
00:26:03.000They didn't feel unsafe there, but because they hate Harvey Weinstein, they claimed they were unsafe and they got him fired as dean at Harvard.
00:26:11.000It wasn't renewed, but it's the same thing as firing.
00:26:14.000And so they've learned that if they say they don't feel safe, they get to win.
00:26:24.000If you say that free speech is violence, you're abolishing the First Amendment and you're abolishing the basic, basic thrust of everything our Bill of Rights was designed to protect.
00:26:36.000And there is an assault, an assault by many in the university, students and faculties, on our Constitution, on our Bill of Rights, and on our basic liberties.
00:26:45.000And what it does is it turns people into activists that are less likely to ever sympathize with the other side of the argument.
00:26:54.000If all speech is violence, well, then it justifies using the power of the state to potentially shut up that speech and to be able to.
00:27:02.000Or use the power or use violence, your own violence, to counteract speech.
00:27:26.000I think it's very important that we maintain a fulsome approach to speech.
00:27:32.000So, Professor, I wanted to get your opinion on something in the couple minutes we have remaining.
00:27:37.000Both you and I are advocates for the state of Israel, and I've learned a lot from you on how to defend the Israel conflict in the Middle East.
00:27:45.000I believe you nominated two friends of mine for the Nobel Peace Prize, Jared Kushner and Avi Berkowitz.
00:27:54.000Absolutely correct, and I'm so proud of it.
00:27:56.000I actually proposed four people, the two of them, plus the two ambassadors, David Friedman, U.S. Ambassador to Israel, and Ron Dormer, Israel's ambassador to the United States.
00:28:05.000These are the four guys who behind the scenes really accomplished the Abraham Accords, and they deserve to receive credit, along obviously with the leaders that signed on the dotted line.
00:28:17.000But without these four people, and particularly without Jared Kushner and Avi Berkowitz, we would never have the Abraham Accords, which are the most significant step toward peace, certainly in the last quarter century.
00:28:28.000So, Professor, you've been talking about writing about the issue of Israel for quite some time.
00:28:33.000And you've done, if anyone's interested, they should look at one of your lectures where you make the legal case for Israel's creation.
00:28:41.000And because that's one of the lies they teach in the academy that Israel was illegally formed, and you really go through it wonderfully.
00:28:49.000What is the lesson that we can take away from how the Abraham Accords came to be?
00:28:53.000What did Jared and Avi do that maybe the Biden administration can learn from?
00:28:58.000This is a peace deal that eluded a lot of administrations, Republican and Democrat.
00:29:03.000But it seems that President Trump and the team he assembled was able to achieve the unthinkable, at least the unthinkable, a decade ago.
00:29:10.000From your perspective, what did they do right?
00:29:12.000First of all, you mentioned my lecture on the legality of Israel's establishment.
00:29:17.000You know, YouTube didn't take that down, but it put a caveat saying that was unsuitable for children.
00:29:24.000And that's now become part of a lawsuit that's being abroad.
00:29:27.000I'm not part of that lawsuit, but my YouTube lectures on the lawsuit.
00:29:33.000What I think that Kushner and Berkowitz and the others did is they didn't allow the Palestinians a veto on the peace process.
00:29:41.000They said, look, if the Palestinians want to join in, fine, you're invited.
00:29:44.000But if you don't want to, if you sit this out, the way you refuse to engage in the peace process in 1938, in 1948, in 1967, in 1990, in 2000, in 2005, and in 2008, we're not going to let you veto peace between Israel and other Arab nations.
00:30:03.000And it was a brilliant, brilliant strategic decision.
00:30:06.000And it allowed three countries at the moment, maybe more coming up.
00:30:11.000Four, we already have Morocco joining partly into this.
00:30:15.000And maybe in the future, the Saudis and others.
00:30:18.000I think it tells the Palestinians, you better come to the peace table or you're going to be ignored.
00:30:23.000You can't get a state by just having BDS and protests and go to the UN.
00:30:29.000You have to sit down and negotiate, and there have to be painful compromises on both sides.
00:31:24.000One of the reasons I nominated these folks for the Nobel Peace Prize is to help put the pressure on to keep, make sure that everybody the importance of the Abraham Accords.
00:31:39.000He's critical of some of the policies.
00:31:41.000But I do think that he'll move and build on the Abraham Accords.
00:31:45.000You know, a lot of people in the new administration don't want to give the Trump administration credit for anything, but they have to build on the positive.
00:32:24.000Well, first of all, I think they're making a mistake in getting into the business of censorship of content based on offensiveness or untruthfulness or all of that.
00:32:34.000You can't win that battle because once you say certain things are untrue and keep other things up, people will assume you're saying the other things are true.
00:33:08.000They also have First Amendment rights to put on the air what they want to and take off the air what they want to, but that doesn't mean they're right in doing it.
00:33:17.000They have the right to do it, but they're wrong in the way they're doing it.
00:33:19.000And I think we have to keep putting the pressure on the social media.
00:33:23.000Professor, thank you for being so generous with your time.
00:33:26.000How do people check out either your, I think you have a podcast.
00:33:43.000The last days I've been talking a lot about the impeachment and the briefs I've been deconstructing and taking apart the briefs filed by the House managers, talking today about whether the president can be compelled to testify whether the Senate has jurisdiction.
00:33:58.000Every day I talk about a very important issue, and I try to simplify it for the average listener and viewer.
00:34:04.000And your book that you wrote, I think it was The Case Against Impeaching the President.