i'm jon scott. thanks very much for joining us i'll be back here tomorrow night and we'll see you then. ♪ ♪ ♪ >> hello, america welcome to life, liberty and levine, we have a great constitutional scholar tonight, john eastman, how are you? >> i'm well. >> you're the professor of law at chapman university. i've known you a very long time. you're a brilliant man, litigated up and down the federal chain on a whole bunch of constitutional issues here, so i wanted to talk to you about several of them. we had earlier this week 375, we400, whatever, former federal

prosecutors write a letter. they put together a letter, they manufactured a news story, saying that if they had been prosecutors, still, and the president was president, they would have charged him with obstruction. now this is very odd, i think, because if trump wasn't president, this wouldn't be an issue at all to begin with, right? >> right. >> secondly, people think that's a lot of former federal prosecutors. there's about 350 federal prosecutors in the southern district of new york alone you're talking about former federal prosecutors there must be thousands and thousands. >> tens of thousands of them. >> so m they put this letter together and everybody is very excited about it and i read this letter. there's not information or substance in this letter that makes a difference. robert mueller puts together this report and here we are focused on volume two because volume one the president says is no good, there's no collusion,

there's no collaboration, no beeniracy that should have the endnd of it. robert mueller puts together this 400 and b some odd page report. was he required under the regulations to put together a 400 and some page report? >> no, in fact what the regulations require is that he do report to the attorney general on his conclusion on whether there's an indicted offense or not, and the evidence supporting an offense or the reasons why he decided not to bring his indictment that's hid and all the regulations require, and in fact, the normal justice department practice is to not let anything beyond that go out, because the justice department speaks against individuals by way of its indicting documents, not by leaks to the press, not by innuendo and reports that don't lead to indictments because people's reputations are at stake as well. >> so we have a very important process in place that was given a lot of thought, it's a regulation, that was adopted and honored by democrats and republicans in-n-out of the justice department. there's some measure of due

process, and this is important, so some people aren't accused of crimes without being charged and having an opportunity to defend themselves so this report is really a bunch of crap isn't it? >> well it is and even the bottom line refusal to draw a conclusion gets the presumption of innocence wrong. he said i couldn't find enough evidence to exonerate president trump from the obstruction of justice allegations. that's not his job as a prosecutor. the only job is to decide whether there's enough evidence to bring an indictment with a likelihood of conviction beyond a reasonable doubt. we presume innocence unless we can prove otherwise. his report presumes guilt unless trump can prove otherwise and it is a fundamental altering of our very basic conceptions of justice. >> let's play along. let's dig into this obstruction of justice. the media is very excited about this by the way, all of their legal scholars, who are nothing of this sort. i have an opinion in front of me , 2005 of the united states supreme court.

this is the key opinion when it comes to obstruction. it's arthur anderson, petitioner vs. united states. the district court level, arthur anderson lost at the circuit court level, the fifth circuit they lost, what did they lose? they were accused of obstruction , destroying document s and among others, andrew weisman, the deputy to mr. mueller and he led this effort. arthur anderson went broke, 80,000 people lost their jobs, and the supreme court reversed the lower courts, in a 9-0 opinion what is it six or seven or eight pages long? it's almost prefunctory, and they say wait a minute, guys you can't accuse somebody of obstruction or even that they tried to impede, there are elements to this crime and not so easy to prove. knowingly dishonest and a corrupt intent. the president of the united states says that this is white

house counsel. if in fact this is true the president denies it and says to his white house counsel look, i want you to get a hold of the judy miller. ii want to get rid of mueller because he's conflicting and he's got a whole bunch of people who are conflicted. now how is that obstruction of justice if the president is saying becau he wants to kill an investigation. clearly everything else he did demonstrates he didn't want to kill an investigation. here is my notes, here is my staff and my lawyer, no attorney client privilege, talk to whomever you want, but this guy, he's conflicted, so let's say he did fire that guy. how is that obstruction of justice? >> well it's not obstruction under the statute but one of the things that everybody is forgetting as well n is the basc separation of powers that the special prosecutor, the department of justice itself, the attorney general have no powers under our constitution that aren't derived from the president. the notion that the president can't determine the course of an

investigation is the most basic violation of separation. we have a unitary executive that the entire executive branch is headed by one guy, and the only constitutional check on that is through an impeachment power, not through statutes and not through regulations internal to the department of justice because the president has the authority to changehr those whenever he wants. the notion that the president can be charged therefore for directing the conduct of the executive branch which is he's the only guy elected to run that branch, really misunderstands the constitution from a very basic level. >> i have never understood, to be honest with you, whether it was watergate or before, this idea that you could have an independent counselor special counsel independent of the executive branch investigating the head of the executive, it has never made sense to me but apparently you and ir in the minority. let's go on with this though. did the president cover up anything? >> no. >> did the president impede anything? >> no. >> did the president obstruct

anything? >> he did not try and alter witness testimony, like president clinton did during his scandal. none of that occurred here. >> and yet these prosecutors sound just like jerry nadler, and the other democrats on the house judiciary committee who are driven by obsession to take out this president, but he wanted to and he tried to. let me ask you this. you're president of the united states. if you want to fire robert mueller, pick up your phone, call robert mueller and you say you're fired. >> right. >> president trump has done that a thousand times before he becamee president of the united states. he knows how to tell somebody, you're fired. so he wasn't obstructing anything was he? >> no. even directing to fire him is no different than him picking up the phone himself and even that would not have been obstruction as you pointed out. the likely result of that would have been somebody else replaced to conduct the investigation,

who was free of any potential or actual conflicts of interest and on a high profile investigation ctlike that, even if there's not actual conflicts you want caesar 's wife to be pure, you want them not even to be the appearance of conflict of interest and what we've seen in the media, the e-mail exchanges between people on mueller's team , who were bent on getting this particular president no matter what, that just stinks of an appearance of a conflict of interest if not an actual conflict of interest and what we're looking for here is was an investigation, if there was going to be one at all and i don't think there should have been we'll get to that it a minute, that is a above approach so that the country can become a real political divide and quite frankly threatening our ability to govern "our bodies, ourselves." >> are prosecutors judges? >> no. >> are they jurors? >> no. >> are they advocates? >> well they're advocates.

>> okay so when a prosecutor puts out a report, why is it to assumed that everything in the report is accurate or everything in the report is the end all and be all as the final word? >> well this goes back to the conflict thing, and why having somebody do this was free of conflicts wasas absolutely essential in what we didn't get in the mueller report, because ss people have a partisan political bias, that comes out and there have been wonderful digests of dissecting of the report to show how biased and skewed certain evidence was and how it was portrayed. it's almost like it was set up to create a media frenzy rather than giving an honest neutral assessment of what went on here. >> the reason he isn't subpoena the president among many is because of this. >> yes. >> the united states supreme court decision. >> unanimous by chief justice, but this is 2005. the court was highly divided partisan ideologically and to

get a 9-0 decision on something as high profile as the arthur anderson and the enron case demonstrates how clear cut the law is and how the prosecutors abused the law in order to try and bring -- >> so the attorney general is aware of this case. >> yes. >> the office of legal counsel, the constitution is aware of this case, deputy attorney general is aware of this case, the career prosecutor, senior careerer prosecutors who worked their way upoivil service not mueller-appointees who contributed to obama and hillary and was that the hillary clinton victory party, they look at this and they know the law. they know the supreme court decision. they know there's no obstruction case here, and yet mr. muelleron writes this. now, here is the thing. as you point out, mr. mueller was supposed to write this report for the attorney general. nobody would write a report like this to their boss. >> no. >> so this was written for congress.

the democrats took the house and he said had ewould release most of his report, and this is what has instigated and triggered all of this in the media, isn't it?d in these 400 former prosecutors. prosecutors, are prosecutors perfect? >> no. >> what happened in the ted stevens case? senator stevens of alaska? >> he had a bunch of productivitieses that bring a false charge against him and they hide exonerating evidence that would have immediately ended the case in a heartbeat, but they play this out duringly the course of his re-election campaign to the extent that it cost him his re-election and then after the fact, they're caught with the exonerating evidence, and many of them are removed from office but by then it's too late. the damage had been donald that's what they wanted to accomplish. >> so when you interviewed the president's white house counsel for 30 hours, and you have two paragraphs in your report about what he said, somehow, that makes me a very very suspicious. what happened to the other 29

hours and 59 minutes? >> well it was all exonerating evidence that was perfectly reasonable stuff and even the two hours that they included in the summary was distorted in order to try and make it appear that something nefarious had gone on, but let's back up one step, because this whole special prosecutor should never have been appointed in the first place. >> i want to get to that. this is very very important. the entire exercise was fundamentally illegal. >> well it was. there's a very specific justice department guideline. we recognize that on occasion, prosecutors will be so conflicted because the target of the criminal investigation is their boss, or their ultimate boss, the president of the united states, and so there's very specific justice departmend policy and when that's the case when there is credible evidence of a crime having been committed by somebody at the top of the

food chain here, we're going to appoint a special prosecutor to give some arms length from the chain of command. >> and what was the crime that was alleged? >> well there wasn't one, and what we had was an intelligence gathering operation which was not a criminal investigation at all, so on two fronts, it was intelligence gathering where there are no limits because we're trying to defend our national security and therefore not a crime, and nobody in the administration itself accused with any evidence of a crime, so those two components which are essential criteria for the appointment of a special prosecutor did not exist and they knew it didn't exist. >> they knew it didn't exist. they appointed the special prosecutor under the regulations anyway and the report is produced and it really violates the regulations too because it's intended to go to the attorney general and intended to be confidential and they know he's going to make it public so they write a different report, two regulations really are violated the appointment of the special counsel, the conduct of the

special counsel, with respect to the report. folks don't forget you can join us on levin tv almost every week night, go to blazetv.com/mark to sign up or give us a call at 8 had 44-levin tv, and we'd love to have you. we'll be right back. call 844 levintv. we would love to have you. moving? that's harder now because of psoriatic arthritis. but you're still moved by moments like this. don't let psoriatic arthritis take them away. taltz reduces joint pain and stiffness and helps stop the progression of joint damage. for people with moderate to severe psoriasis, 90% saw significant improvement. taltz even gives you a chance at completely clear skin. don't use if you're allergic to taltz. before starting, you should be checked for tuberculosis. taltz may increase risk of infections and lower your ability to fight them. tell your doctor if you have an infection, symptoms, or received a vaccine or plan to. inflammatory bowel disease can happen with taltz,

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>> dr. john eastman, you're a constitutional employee pert. this is really a rejection by the democratat party and the mea and the rest of them. rejection of the 2016 election isn't it? >> i think so. they still can't believe they lost that election and they're trying to rationalize there must have been something nefarious in order to produce it but let's put it in historical context. i think we've confronted a situation like this three times in ournk nation's history. 1,800, first time there was a change of power, one party to another, jefferson defeated adams, took him a while but adams finally handed the baton over. >> but that was brutal and there were multiple votes in the house of representatives and finally, hamilton throws in support to jefferson who he can't stand but he can't stand john adams even more. >> right. the second time in our history this happened that was not the

>>result. 1860 and that led to the military conflict in our nation 's history. >> by the way, lincoln. did lincoln win a month of the popular vote? >> know he didn't like 38% off the top of my head but he won a majority of the electoral college so he may not have been president of the united states depending on how that popular vote would have worked. >> we would have still had slavery in all likelihood. and then this election. what we're seeing here, not just with this investigation, but with the broader investigations and the use of subpoenas and federal judges that have been nominated and con flipped by president obama and appointed by president obama blocking thisir president's actions perfectly legitimate actions, they have one court actually said well it's constitutional if it had been done by any other president but not by this president in the travel ban case. others are saying the president has no delegated authority to build a wall when the statutes

are clear, and reviving a non- delegation doctrine but the underlying presumption is well when we delegate power to the president we didn't mean this president. any other president fine, but not this president, so this is really a challenge to the results of the last election, which means that it's a challenge to the american people and the very notion that we govern "our bodies, ourselves." >> i mentioned this a couple of weeks ago on this program. this is not also the biggest effort in american history to disen franchise voters 63 million of them who voted for this president? >> it is. by far the largest, and but it's more than just that. it's a challenge to the very legitimaticy of the system. you see a national popular vote oeffort going on to get rid of the electoral college. one of the most crucial structural components of our constitution and it's designed to make sure that we're not a raw democracy that just acts like a mob but in fact channels our democratic instincts into an

enlightened popular rule. >> why did the framers of the constitution say look, we're not going to just vote on staff all of the time. matter of fact we'll set this government up, it's kind of complicated. different branches, two bodies within one body, congress, we're going to have judges that serve for life but they have to be confirmed this way and then have an executive. they spend a lot of time trying to figure out how to organize this. why didn't they just say do you know what? they're states and you'll vote for the president. >> if we figured out some year down the road we'll have twitter we'll just subject everything to twitter because they understood that you can have tyranny of ond , we call tyranny of a few an oligarch it and we can also have tyranny of a majority. >> a mob. >> and our constitution is based on two things. one, ultimately the people are

sovreign but the people have no just authority to deprive others of their individual rights, and so all of these structures are here in order to confine majority so that it be governing but that it not trample the rights of any minority whether religious, racial minority or just an electoral minority that every individual human being has rights that the majority must respect if it's going to be a just majority and these structural components of our constitution are designed to confine, to t constrain, to dirt that c majority so that it be te just majority rather than a mob majority. >> what is the declaration of independence? >> well it says all men are created equal all human beings are created equal that we are endowed by our create or, these itpre-exist government. >> so the point is you can have a vote, but i have rights. >> that's right. if i get 51% i can't take the property of the other 49%. that's what it means. >> and guess progressives keep

pushing us in this direction. >> exactly. >> so they setup the system to protect the individual, to protect life, and liberty, and the pursuit of happiness which in many ways meant so you can live your life as an individual, as you wish to live your life, as long as it's moral and you're not committing crimes and damaging somebody else's property, this is really unique in human history to setup a government this way this is our founding document and the constitution is the governing document in intended to basically implement thosese principles to try and figure out how to set up a government so i often put it this way. my neighbors don't get to vote on my property rights. v>> right. i heard joe biden say the other day, the greatest right you have is to vote. the greatest right you have is your life and liberty, right? >> life, liberty and property and madison defined property as a property in our rights, and this is key. this was understood by everybody at the time. the purpose of government is to

secure those rights. against any tyranny that would take them away whether again of one or many or what have you. we've now got a significant mportion of our population that thinks the purpose of government is otherwise, to redistribute rights to take from some and give to others. they understood that to be the very definition of injustice or an unjust law to do that and yet this is what the politics are leading toward now. >> it seems though the same political forces which denies 63 million people their vote, and wave around the constitution on the same political forces and i want to explore that with you when we come back. we'll be right back. , i want to explore that with you -that's how a home and auto bundle is made. [ chuckles ] so, what are some key takeaways from this commercial? did any of you hear the "bundle your home and auto" part? -i like that, just not when it comes out of her mouth. -yeah, as a mother, i wouldn't want my kids to see that.

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and power lines across the region. some of the worst damage seen in central nebraska. the storms also bringing hail, strong winds, and thunderstorms. the severe weather threat expected to continue over the next few days. i'm jon scott, now back to life, liberty and levin, and log on to foxnews.com for your headlines. >> you know, dr. eastman, i see a basic threat here and look at the democrats and the house judiciary committee and the oversight committee, i look at the media in this country that thinks the constitution is just one that protects them. there is a disregard, if not a constitutional order and the same people who are attacking this president saying he's violating the constitution, and for the life of me i can't figure out how, that he wants to bef a dictator, for the life of me i can't figure out how. he's not fdr after all and lack at this and then i say to myself

but let's take the electoral college. there would be no country like for the compromise on the electoral college. there would be no united states senate if we just had a popular vote like a parliament or something of that sort. in the bill of rights, there would probably be no bill of rights because it protects the individual rights but if we can vote, i mean, there are the bill of rights in the uk or most of this parliament systems we have a constitutional system. how do you think or why do you think the progressive left whether in the media or the democrat party or so forth are able to get away with waving around the constitution while trying to destroy it? >> well part of it turns into the notion of what the constitution is, and there's been a sustained effort over the last half century actually going back a full century when the constitution is the supreme law of the land but one of the judges or justices once said but it is only what the justices say awit is, and they like that, because kind of elite progressive move in the courts to redefine the constitution.

nthat then becomes the constitution in their view and the reason that was important forns this progressive movements anti-american progressive movement was the constitution's constraints on government serve to limit the good that they thought they could do with government, and therefore, you had to get rid of the constraint s which means you had to get rid of the constitution structure, the notion of the powers of the federal government can only exercise those powers that are dedicated to it. all of these structural constraints stood in the way of the best and the brightest experts, doing the right thing, the political science was going to solve all problems, create eutopia for us and we just get these constraints on government out of the way, and so there's been a sustained century-long effort to remove the impediments that the constitution imposes on government. >> to create this centralized government, this massive army of bureaucrats, the fourth branch of government, the administrative thing where no matter the election, it's

largely uneffected, however this president has effected it like few others to his credit, and you're right this is part of the progressive movement. they attack the constitutional structures, to confine and separation of powers and yet they use it when they can like they are against this president, but they also attacked the declaration of independence don't they? >> they do. because that is under the ideas that are in the constitution, right? >> there was a supreme court decision out of kansas just last week. kansas has a very explicit protection of life in their state constitution. others more broadly in the court say well, that says life, but the life of the unborn we're not going to cover that. we're going to impute to the constitution that they really meant privacy and then that prevailed over life, so the actual language of the constitution is discarded in order to advance a progressive agenda, progressive idea on a particular issue, and that's what we've had courts doing for way too long.

president trump did something very boldd in his campaign. he announced the kind of people that he would be picking for the supreme court vacancies or the lower courts, and i think that issue o more than any other is what won him the election, because people quite frankly, are tired of their lives and basic policy decisions being handled and made by unelected judges. it goes back to lincoln. and in his very first inaugural address hey was confronted where they said you can't do anything about the slavery question the supreme court already t ruled ad he said if we're to let that ruling on a particular case settle this contested policy we will have ceased to that extent to be governing "our bodies, ourselves." >> is this not another reason why they hate trump because he's trying to put people on the courts, who have fidelity to the original intention of the framer s of the constitution? >> well it is and i want to emphasize this. he's not trying to put people on the courts who are the counter

balance of the leftist that have input on the courts.rb he's trying to put people on the courts that will follow the law wherever it leads and that's what you want. that's what you must have in judges for the judiciary to have any sustained respect from the people. >> so we're not talking about putting conservatives on the court from the political point of view. we call them people who look at the constitution, like what was intended when it was adopted, try to discern that, and they can come up with different results. i mean, a scalia, and from time to time comes up with different results but it's the process, the integrity of the process, the thinking process you're supposed to use, right? >> and it's also the thing that gives the court legitimaticy. if what we're not interpreting is a higher law that's binding, then why would we have given the decision to nine unelected judges? right? the entire legitimaticy of the judicial enterprise turns on the

fact thate we have a higher law that they are supposed to enforce. >> an important footnote to this stuff and this popular vote stuff. the left only supports the popular vote when they win. >> that's right. >> when they lose, then they turn to the courts and the bureaucracy. ladies and gentlemen don't forget, levin tv, you can see it almost every week night, join us at blazetv.com to sign up/mark, blazetv.com/mark or give us a call at 844-levin-tv. we'll be right back. tv.com or l tv.com or l at 844 levintv. i can't believe it. that we're playing "four on four" with a barbershop quartet? [quartet singing] bum bum bum bum... pass the ball... pass the rock.. ...we're open just pass the ball! no, i can't believe how easy it was to save hundreds of dollars on my car insurance with geico. yea. [quartet singing] shoot the j! shoot, shoot, shoot the jaaaaaay...

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that's called in our code 6 e secret grand jury information and i couldn't give it to you if i wanted to give it to you and so you know, otherwise, you had people talking about sending the sargent of arms to get him. i would recommend to the house they reconsider that, because i think the justice department is better armed than the house of representatives, but that said, tlet's take a look at the constitution a second. ethese committees with all these subpoenas throwing around, they are throwing around for the president's personal bank records is a personal financial record for his private income taxes, this sort of thing. it is enormously outrageous, it's harassment, and it's an attack at a personal level. what's wrong with that? >> well a couple of things. one, they're trying to undermine the result of the last election, that's first and foremost. second, what they're doing amounts to something that our

own declaration of independence had accused the king of doing which is issuing general warrant s and when you suspect a crime has occurred we go to the judge and we ask for a warrant to inspect certain things that we think will help us t prove te crime. what they are doing was issuing general warrants that meant the king's tariff office was not where they suspected a crime, but where they had an individuag that they wanted to investigate to see if any crime had been committed, and one of the reasons we have a fourth amendment is to prevent the notion of general warrant and we target an individual we don't like and turn his life upside down until we can try and find some evidence of a crime, what we see happening here with the investigation, with the subpoenas, let's go through the financial records for 10 years, if that doesn't produce anything let's go back 20 years if that doesn't produce anything let's go back. we know this guy must have done

some crime otherwise he couldn't have gotten elected so let's sco ur the earth, and that's like a general warrant and there's a good reason why we have a constitutional prohibition. >> and he is a citizen. >> that's right. >> so the bill of rights applies to citizen trump too. >> well it does as does the tax code that says your private tax return is confidential. now the congress has in the statutes the authority for the ways and means committee and the house and the similar committee in the senate to request tax returns and generally, on a broad basis to make sure that there's not any monkey business going on with the irs selects people for audit. if any individual tax return information is disclosed to those committees in that process it absolutely has to be kept confidential. let me emphasize this. that was intended to protect taxpayers from the irs. >> right. >> in other words, so the irs isn't targeting certain groups, based on the religion, certain

groups based on their race, so congress, it wasn't intended to violate separation of powers, to use it as a tool against an american citizen and so forth, and if congress in the end has the power to do this to the president, i suppose that the espower to do this to the chief justice? >> well they do but also they should be very careful because the same statute that gives them the power to ask the irs for individual tax returns to look at whether the irs is abusing its power also allows the president to ask for individual ortax returns, so he could ask r chairman nadler's tax returns. >> yes but nadler would say that's impeachable whereas he's trying to look at and nancy pelosi, the house speaker has a lot of power over what kind of legislation comes to the floor, appropriation, nothing happens without her say so even before it gets to the president correct >> that's right. >> so what about her tax returns? >> well her tax returns the business interest of her family,

all of those things would be fair game under this rule. let's look at dianne feinstein's tax returns and particularly her husband's business relationships with chain a and her votes on particular things, let's look at the clinton foundation tax returns and specific actions secretary hillary clinton took when she was secretary of state that can be tied to her contributions to clinton family foundation. >> is this what congress is supposed to do? >> no it's not when the irs is abusing things congress is looking into the irs. >> but their democrats want to olook into the irs abusing the tea party groups? >> no and i was one of those you may recall i actually testified in congress over that issue, andac the abuse of the i, the ideological abuse, slow- walking conservative organizations from getting the normal pre-clearance for non- profit status that everybody else gets. >> and that's the purpose of this statute, that congress can look into the abuse, not so congress can abuse the irs in order to abuse the president or an individual citizen correct?

>> that's right. >> the oversight responsibility of congress is supposed to relate to what? >> well to make sure that the department of justice and the executive branch agencies are doing their job and staying within the lines that the constitution sets out for their authority. >> and perhaps pass legislation >> pass legislation. >> but they're not a shadow criminal investigative operation are they? >> no they're not. >> what about these states? >> by the way and they're not structurally set up to be that way. it becomes a circus, a show trial as we've seen in several hearings. >> it is right now. what about these states like california and others who think they are very clever and trying to pass statutes that say you don't qualify to run for primary and the general election and our state, unless you reveal your tax returns is that constitutional? >> no it's unconstitutional. the supreme court decided this issue a long time ago back in the early 1800s, on a member of congress when the state tried to impose an additional restriction

on its members and they said the constitution sets out the requirements for federal office, and the states can't add to those requirements. well saying somebody has to disclose their tax returns is adding a requirement to running for federal office, and the states have no power to do that. >> but the states want to violate the federal constitution while waving it around? >> right. >> we'll be right back. federals have no power to do ♪ i think i found my dream car. it turns out they want me to start next month. she can stay with you to finish her senior year? of course she can! [ laughter ] [ groaning ] hey! want to drive? really? [ engine revs ] do you think we can do this, rob? things will be tight, but we can make this work. that's great. ♪

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professor, i want to tackle what is one of the most boring issues in america, but the left keep bringing it up. i can tell you and i >> and the way things were brought up today is they scour the constitution looking for things to destroy. the clause basically says look, your president and senior officials of the administration of the government, you're not allowed to have foreign titles foreign appointments, okay, great, and you're not allowed to receive the monuments, payments and so forth from governments, and so they say well here the president is a lot of things but this hotel in washington d.c. in particular, beautiful hotel i recommend it to anybody who'd like to go there the trump hotel , when these foreign heads

lof state and other diplomats stay at that hotel and pay for their hotel rooms, and pay for their meals, that is an unconstitutional benefit to the president of the united states. is that right? >> there's so far a single court that has said that's right and it's laughable. i mean, look, if that were the case, then president obama accepting the nobel peace prize would have been an unconstitutional monument and any president that owns stock in any foreign corporation that had ties to a foreign government when that stock price goes up because of some action of the foreign government that would be an unconstitutional monument that's never the way we looked at it through 200 years of our history. >> and yet we have a judge. i believe in maryland, maybe it's d.c., who ruled that maryland and washington d.c. have because they get tax proceeds from the hotel, so in

other words they get a benefit from the hotel, so they can sue under the monuments clause, that they shouldn't get a benefit from the hotel? >> yeah, yeah. >> is this not the problem when you're with judiciary that its become in many respects despite what the chief justice said, so thoroughly activists and part san. >> well, you know, i want to segway back to the travel ban cases because something very similar happened there. the judges that blocked president trump's executive order on the travel ban, which was not a ban, it was a temporary suspension, didn't even cite the statute that clearly gave him the authority to do what he had donald that had been used by every president from jimmy carter forward and it was only this president that somehow ran afoul of it and these judges become part of a resistance movement to undo the results of the 2016 election and it really is a travesty. i think that the the greater threat to our constitutional system and rule of law with any of the particular incidents that

the embracing of the judiciary of this resistance. >> didn't also the judge said that when obama put in place certain environmental regulation s that this through executive order, that this president can't reverse them through executive order haven't they also said some of these judges that daca wasn't put in place basically that was written out of the white house that piece of legislation that was adopted through executive order that this president can't reverse that, so a president vecan't reverse the executive decisions of the president who preceded them? decisions that were themselves unconstitutional? my favorite is the daca case, the immigration-deferred action. president obama after 22 different times saying he had no legal authority to do it, went ahead and did it anyway or rather his secretary of homeland security did it, with a memo, not even an executive order, it was held to be unconstitutional, because it didn't go through the regular requirements for adding

a new regulation. the same janet napolitano who did that illegal act and then sued trump for reversing it without going through the comment process that she hadn't gone through it was laughable and yet you get a judge that says napolitano suit has to stop this illegal action. it's really unbelievable. >> when we come back, impeachment. we'll be right back. this is a commercial about insurance and i know you're thinking. i don't want to hear about insurance. 'cause let's be honest... nobody likes dealing with insurance. right? see, esurance knows it's expensive. i feel like i'm giving my money away. so they're making it affordable. thank you, dennis quaid. you're welcome, guy in kitchen. i named my character walter. that's great. i'd tell you more but i only have thirty seconds so here's a dramatic shot of their tagline so you'll remember it. when insurance is affordable, it's surprisingly painless. it's a revolution in sleep.

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representatives want is going to play out, they're going to get the vote -- mark: how are they supposed to conduct? >> treason, high crimes and misdemeanors were not the ordinary crime, high crimes and misdemeanors was a term of art, a fundamental abuse of the office that would undermine the legitimacy of government itself. those were the kind of things they were talking about. they did not want a king who was above the law who could do whatever he wanted -- mark: has that happened here? >> well, w no. i've been stunned how scrupulous trump and his team have been in staying within the legal lines that they have. they could have done it otherwise. his immediate predecessor, you know, blew threw the lines on numerous occasions, and they could have said we're going to take what obama said as precedent, but they haven't done that. mark: here's the problem, the president doesn't serve at the pleasure of the house of representatives. >> no,o, that's right. this is not a parliamentary

system -- mark mark and if they get theirry way, that's what's going the happen. john eastman, it's been a great honor. >> thank you for having me. mark: join us next time on "life, liberty and levin." ♪ >> this is a fox news alert, this is day nine of the sex strike, and things are getting very tense. as you know, republican governor brian kemp signed a heartbeat abortion bill in the state of georgia. celebrity activist alyssa my elan know tweeted this: reproductive rights are are beig erased. we just cannot risk pregnancy. join me by not having sex until we get bodily autonomy back. i'm calling for a sex strike. pass it on. if many men across the country are suffering, especially in the state of georgia, and they don't know how long they can last. so men were confused abo