Executive Privilege, SB 8 update, and Rust
An update on SB 8, Executive Privilege of presidential records connected with January 6th, and a short digression into criminal law about the tragic death on a movie set
Episodes
What Roman Mars Can Learn About Con Law
Professor Elizabeth Joh teaches Intro to Constitutional Law and most of the time this is a pretty straight forward job. But when Trump came into office, everything changed. During the four years of the Trump presidency, Professor Joh would check Twitter five minutes before each class to find out what the 45th President had said and how it jibes with 200 years of the judicial branch interpreting and ruling on the Constitution. Acclaimed podcaster Roman Mars (99% Invisible) was so anxious about all the norms and laws being tested in the Trump era that he asked his neighbor, Elizabeth, to explain what was going on in the world from a Constitutional law perspective. Even after Trump left office, there is still so much for Roman to learn. What Roman Mars Can Learn About Con Law is a weekly, fun, casual Con Law 101 class that uses the tumultuous activities of the executive, legislative, and judicial branches to teach us all about the US Constitution.
All music for the show comes from Doomtree, an independent hip-hop collective and record label based in Minneapolis, Minnesota.
Episodes
The Eastman Memo
John Eastman, a mainstream conservative lawyer working for Trump, outlined a plan for VP Pence to declare Trump the winner of the 2020 election regardless of the votes. It didn't happen, but should we be worried about the memo when it comes to future elections?
Shadow Docket
The "Shadow Docket," Texas's SB 8, and the state of abortion rights in the US
Double Dose of Jacobson
As people argue over public policy regarding the COVID vaccine, Jacobson V. Massachusetts is invoked a lot. Plus, Trump is in court and the first Capitol riot conviction.
Bong Hits for Jesus
This episode contains explicit language quoted from a cheerleader. Recorded on Monday 6/28, Professor Joh walks us through three recent decisions that came in at the end of the term and how they relate to court precedent. California v. Texas Mahanoy Area School District v. B.L. Lange v. California
Hate Crimes
On May 20, 2021, President Biden signed the COVID-19 Hate Crimes Act. This bill made special mention of hate crimes against Asian Americans. This was in stark contrast to his predecessor who stoked hate by using racist terms for the coronavirus. What exactly is a hate crime and what does the Constitution say about them?
Pattern and Practice
What can a President do when it comes to reforming the approximately 18,000 locally governed police departments around the US? The infamous Rodney King video showing him being graphically beaten by police officers helped catalyze a giant 1994 crime reform bill that brought the pattern and practice of local police departments under federal scrutiny. How does it work?
The Capitol Mob and their cell phones
On January 6th, a mob stormed the US Capitol to try to stop the certification of the presidential election results. Many of the insurrectionists will be tracked down and charged with crimes, in part, because their cell phone placed them in the Capitol Building during the attack. The case of Carpenter v. United States is the closest the Supreme Court has come to weighing in on the matter of historical cell phone data, but the decision didn’t not offer an opinion on law enforcement’s use of a loca...
Deplatforming and Section 230
Following the January 6th riot on Capitol Hill, the major social media platforms banned former President Donald Trump, and many accounts related to far-right conspiracy theories. In response, conservative activists have called for the repeal of Section 230 of the Communications Decency Act, saying it would prevent ‘censorship’ of right-wing viewpoints in the future. But what does Section 230 actually say? How are the social media companies determining what can be on their platforms?
Incitement
On January 13th, former President Donald Trump became the first person ever to be impeached twice by the House of Representatives. But with Trump out of office, it’s unclear if there will be enough votes to reach the two-thirds majority needed to convict him in the Senate. With the trial looming, we look at whether Trump has a good argument against the charge he incited a riot on Capitol Hill, and whether or not it’s constitutional to impeach someone after they leave office.
The Final Days
How Trump is failing to overturn the election and how he might use his pardon power in his final days. This episode was recorded on December 21, 2020.
Lame Duck
In late November, most states have certified the Presidential election for Joe Biden and his running mate, Kamala Harris. But Donald Trump continues to deny the results of the election and insist (without a shred evidence) that he lost because of voter fraud. What does the constitution have to say about the transfer of power? What if Donald Trump fails to concede? What does the constitution say about the period of time after an incumbent loses but remains in power?
Counting Votes
During the 2000 Presidential Election, it wasn’t immediately certain who had won the electoral college votes in Florida, throwing the entire process into chaos. Eventually, the SCOTUS had to step in to rule on the outcome. With the 2020 election only a few days out, we take a look back at how the Supreme Court played a role in adjudicating the election in Bush v. Gore, and then we look forward to what might happen this time around.
SCOTUS without RBG
On September 18th, Ruth Bader Ginsburg died at the age of 87. She was a trailblazing jurist who fought for the equality of women before the law. But her legacy is in peril, as Donald Trump and Senate Republicans prepare to nominate a conservative successor. What can Democrats do to alter the course of the SCOTUS? And what does the constitution tell us about so-called ‘judicial supremacy’?
The Hatch Act and The Election
With only two months before the election, the Republican Party got a lot of attention - and scorn - for using the White House as a backdrop during their nominating convention. The convention appeared to be in contradiction of The Hatch Act, which forbids federal employees from political campaigning while they’re on duty. Even if the convention broke the law, will anyone be held accountable? Plus, we tackle the President’s recent comments casting doubt on mail-in balloting.
The Trump SCOTUS Term
We review some of the big cases that were decided during the SCOTUS term and assess the constitutionality of the federal policing of the Portland protests
Police, Race, and Federalism
As people around the world continue to protest police brutality, Republicans and Democrats in Congress have proposed bills that would reform policing across the U.S. But in the American system, states are given a lot of latitude over law enforcement, down to the use of tactics like chokeholds and tear gas. Given the constitution, what can the federal government actually do to make things better? Also, why was the ever-obscure Third Amendment trending last month?
The Socially Distanced SCOTUS
The Supreme Court may not be able to meet in person, but they are still doing business over conference call. This month, they've considered three cases about Donald Trump's finances, and whether they should be released to Congressional committees and prosecutors in New York. What does history tell us about these cases which could have major consequences for executive power?
Jacobson and COVID
In mid-April, 2020, states are beginning to explore ways to re-open their economies amid the global coronavirus pandemic. But with states devising their own paths forward, many are wondering what powers the government has, even during a national emergency. Are the states violating our civil liberties by enforcing these lockdowns? To answer this question, many legal scholars are looking to a 115-year-old Supreme Court case for answers, Jacobson v. Massachusetts.
Quarantine Powers
During a health crisis, what is the government allowed to do? As the novel coronavirus spreads across America, there have been closures and lockdowns across the country. In this episode, we look to history to understand who has the power to quarantine, and how the office of the president can be used to slow down a pandemic.
Prosecutorial Discretion
Prosecutors recommended that Roger Stone, an associate of Donald Trump, be given a heavy penalty after being convicted of seven felony counts, including lying to authorities. But after intervention from Attorney General Barr, and tweets from the President, those recommendations were rescinded. What can his case tell us about presidential interference and prosecutorial discretion?
War Powers and Impeachment Update
After Donald Trump ordered the killing of Iranian general Qasem Soleimani, many wondered if the two countries were on the brink of a major conflict. This incident is only the latest in the long-standing fight between Congress and the President over who has the power to make war, and if an act of violence against another state can be legitimate without Congressional approval. This episode also includes an update on the Senate impeachment trial of Donald Trump, which began earlier this week. Make ...
Bribery
Bribery is one of the three offenses listed in the Constitution as grounds for impeachment. Even though that is attempting to bribe Ukraine is the act that precipitated to Trump’s impeachment, it’s not explicitly listed in the articles of impeachment. Why is that? Make your mark. Go to radiotopia.fm to donate today.
Confrontation Clause
Since the beginning of the impeachment proceedings against the President, Donald Trump has insisted he has a right to confront “the whistleblower,” the anonymous member of the intelligence community who set the whole thing in motion. There is a Confrontation Clause in the Sixth Amendment of the United States Constitution, which says a defendant in a criminal case has the right to face their accuser. But does this clause apply to the impeachment hearing against a president in Congress?
Foreign Affairs
Donald Trump says he should not be impeached as President, since there was ‘no quid pro quo’ on a phone call where he asked the Ukrainian president to investigate a political rival, former Vice President Joe Biden. But does quid pro quo need to be explicitly stated to be a legal issue? And can private citizens like Rudy Giuliani represent America on foreign policy issues? Get the new Shredders album from Doomtree!...
Obstruction
Trump lawyers assert that all of Trump’s actions during the Mueller investigation were within his rights as President and can’t be classified as obstruction of justice, especially because there is no underlying crime alleged. But as Martha Stewart will tell you, that’s not how obstruction of justice works. Get the new Shredders album from Doomtree!
Contempt Power
What is Congress’ contempt power and how can they use it to force people to cooperate with their investigations?
Executive Privilege
It's likely that Trump will invoke executive privilege during the numerous investigations and inquiries into his actions. Presidents have insisted they need to keep secrets to do their job effectively since Washington, but the term "executive privilege" is relatively recent and it has rarely been tested in court.
The 25th Amendment
What does the 25th Amendment say about presidential fitness, disability, and Trump?
Birthright Citizenship and the 14th Amendment
Trump has threatened to revoke Birthright Citizenship with an executive order. This proposed order contradicts the Fourteenth Amendment, but Trump’s tweets contend otherwise.