Gavin Howe
What Trump Can Teach Us About Con Law is a podcast hosted by acclaimed podcaster Roman Mars, with Professor Elizabeth Joh as his guest. The podcast is a fun, casual Con Law 101 class that uses the tumultuous activities of the executive, legislative, and judicial branches during the Trump presidency to teach listeners about the US Constitution. The show's music comes from Doomtree, an independent hip-hop collective and record label based in Minneapolis, Minnesota.
| Characteristics | Values |
|---|---|
| Hosted by acclaimed podcaster Roman Mars | 99% Invisible, co-founder Radiotopia |
| Professor | Elizabeth Joh |
| Subject | Intro to Constitutional Law |
| Music | Doomtree, an independent hip-hop collective and record label based in Minneapolis, Minnesota |
| Example topic | Roger Stone, an associate of Donald Trump, and whether his case tells us about presidential interference and prosecutorial discretion |
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What You'll Learn
Trump's tweets and their legal implications
During his four years as president, Donald Trump's tweets and actions caused concern for many, including acclaimed podcaster Roman Mars, who was anxious about the norms and laws being tested during the Trump era.
Professor Elizabeth Joh, who teaches Intro to Constitutional Law, would check Twitter minutes before her class to find out what the 45th President had said and how it compared to years of the judicial branch interpreting and ruling on the Constitution.
One example of the legal implications of Trump's tweets is the case of Roger Stone, an associate of Trump who was convicted of seven felony counts, including lying to authorities. After intervention from the Attorney General and tweets from Trump, the recommended heavy penalty was rescinded. This raises questions about presidential interference and prosecutorial discretion.
Trump's tweets about the so-called "Deep State" and his attacks on the media also have legal implications. For instance, his false claims about a wave of violence perpetrated by migrants and his threats of mass deportations under the Alien Enemies Act could be seen as inciting fear and hatred.
Furthermore, Trump's tweets about the Mueller investigation and his assertion that his actions were within his rights as President brought up the issue of obstruction of justice. Trump's lawyers claimed that there was no underlying crime and therefore no obstruction, but this is not legally accurate, as seen in the case of Martha Stewart.
In conclusion, Trump's tweets and their legal implications provide a unique perspective on Constitutional Law and how it is interpreted and applied in modern times. They also highlight the importance of understanding the potential consequences of a president's public statements and actions.
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Presidential interference and prosecutorial discretion
The Trump presidency has been a source of anxiety for many, including acclaimed podcaster Roman Mars, who sought the help of his neighbour, Professor Elizabeth Joh, to explain what was happening in the world from a US Constitutional Law perspective. This resulted in the creation of a podcast called "What Trump Can Teach Us About Con Law", which uses the tumultuous activities of the executive branch under Trump to teach listeners about the US Constitution.
One of the topics explored in the podcast is presidential interference and prosecutorial discretion. This topic came to the forefront during the case of Roger Stone, an associate of Donald Trump. Stone was convicted of seven felony counts, including lying to authorities, and prosecutors recommended a heavy penalty. However, after intervention from the Attorney General Barr and tweets from President Trump, those recommendations were rescinded. This episode raises questions about the extent to which the president can interfere in prosecutorial decisions and the discretion afforded to prosecutors in such cases.
Another instance of potential presidential interference involves Trump's lawyers' assertion that his actions during the Mueller investigation were within his rights as President and did not constitute obstruction of justice. They argued that there was no underlying crime alleged, but this reasoning contradicts the understanding of obstruction of justice, as exemplified by the case of Martha Stewart. Additionally, Trump's attacks on the "Deep State" and the Supreme Court further complicate the dynamic between the executive and judicial branches.
The podcast also delves into the long-standing power struggle between Congress and the President over the authority to make war. This was highlighted by Trump's decision to order the killing of Iranian general Qasem Soleimani, which raised concerns about the potential for a major conflict between the two countries. The episode discusses the role of Congress in approving acts of violence against other states and provides an update on the Senate impeachment trial of Donald Trump.
Through these examples, the podcast "What Trump Can Teach Us About Con Law" offers valuable insights into how the Trump presidency has challenged traditional interpretations of Constitutional Law and the separation of powers in the United States government.
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The Alien Enemies Act and mass deportations
The Alien Enemies Act, enacted in 1798, grants the President of the United States the power to order the detention and deportation of foreign enemies. This act was created in anticipation of a potential war with France, and it has been used sparingly throughout history, primarily during times of conflict. The act allows the President to target immigrants based on their country of birth or citizenship, bypassing conventional immigration laws.
In recent years, there has been controversy surrounding former President Trump's use of the Alien Enemies Act to deport migrants. Trump has threatened mass deportations under the act, claiming that there is a wave of violence perpetrated by migrants and that the US is facing an invasion of people arriving illegally. Trump's administration has specifically targeted Venezuelan migrants accused of being gang members, such as those associated with Tren de Aragua and MS-13.
Critics argue that Trump is misusing a wartime law to sidestep immigration protections and that his actions threaten civil liberties. Legal challenges have been mounted by groups such as the ACLU and Democracy Forward, who argue that the act is being unlawfully applied during peacetime. Lower courts have issued temporary orders blocking deportations, but the Supreme Court has allowed the Trump administration to proceed with deportations, provided that deportees are given the right to challenge their removal.
The use of the Alien Enemies Act by Trump has brought attention to the potential for abuse and rights violations inherent in the law. The act conflicts with the American ethos of judging individuals on their merits, particularly in high-stakes decisions like deportation. It also poses a risk of targeting immigrants who are lawfully present in the country and have no ties to espionage or sabotage. As a result, there have been calls for the law to be repealed or struck down by the courts to prevent future misuse.
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Congress' contempt power and its limits
The ability of Congress to hold individuals in contempt who interfere with its duties is considered an implied power of the legislature. In the late 1790s, declaring contempt of Congress was considered an "implied power" of the legislature, similar to the British Parliament's power to make findings of contempt of Parliament. While the Federal Constitution does not explicitly provide for Congressional power to hold individuals in contempt, such power is considered implied because without it, Congress could not effectively carry out its duties.
Contempt of Congress is the misdemeanor act of obstructing the work of the United States Congress or one of its committees. Historically, bribery of a US senator or representative was considered contempt of Congress. In modern times, contempt of Congress has generally applied to the refusal to comply with a subpoena issued by a congressional committee or subcommittee—usually seeking to compel either testimony or the production of requested documents.
Congress has the power to invoke three types of contempt proceedings if a committee believes someone is obstructing its investigative powers. The first type of contempt power is a citation of criminal contempt of Congress. This power comes from a statute passed by Congress in 1857, which made "contempt of Congress" a criminal offense against the United States. Once a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President refers the matter to the US attorney's office, which then brings the matter before a grand jury. If the case goes to a grand jury, fines and a jail term could result from the ensuing criminal prosecution.
The second type of contempt power comes in the form of a civil lawsuit brought by the House or Senate, asking a court to enforce a subpoena. The third type of contempt power—Congress’s dormant inherent contempt power—is rarely used in modern times. Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.
Congressional subpoenas are within the scope of the Speech or Debate clause, which provides "an absolute bar to judicial interference" once it is determined that Members are acting within the "legitimate legislative sphere." Courts generally do not hear motions to quash congressional subpoenas, and even when executive branch officials refuse to comply, courts tend to rule that such matters are "political questions" unsuitable for judicial remedy.
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Executive privilege and its legal basis
Executive privilege is the right of the US president and other executive branch members to maintain confidential communications under certain circumstances. This privilege allows them to resist subpoenas and other oversight actions by the legislative and judicial branches of government. The purpose of this privilege is to protect sensitive information related to governmental functions and national security.
The legal basis for executive privilege is derived from the constitutional principle of separation of powers. While the US Constitution does not explicitly mention executive privilege, the Supreme Court has ruled that it is a consequence of the separation of powers and the supremacy of each branch in its area of constitutional activity. This ruling was made in the United States v. Nixon case in 1974, also known as the Watergate Scandal. In this case, the Supreme Court recognised that there is a valid need for protection of communications between high government officials.
The use of executive privilege by President Nixon highlighted the delicate balance between the executive branch's confidentiality and autonomy and the judiciary's need for information in a judicial proceeding. This case established that even the president has a legal duty to provide evidence of communications relevant to a criminal case.
The application of executive privilege is not absolute and is decided on a case-by-case basis. The judiciary evaluates the executive's claims of confidentiality and weighs them against the need for the administration of justice. This evaluation can be challenging, as courts try to avoid constitutional confrontations between the executive and judicial branches.
During the Trump presidency, the concept of executive privilege was once again brought into the spotlight. Trump and his allies challenged election results and made various legal threats, including mass deportations under the Alien Enemies Act. The tumultuous activities of the Trump administration provided a context for understanding the US Constitution and the limits of executive power.
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Frequently asked questions
It is a podcast hosted by acclaimed podcaster Roman Mars, where Professor Elizabeth Joh teaches us about the US Constitution by interpreting and contextualising the actions of the executive branch under Trump.
It is a weekly, casual, and fun Con Law 101 class that uses the tumultuous activities of the executive branch under Trump to teach us about the US Constitution.
All the music for the show comes from Doomtree, an independent hip-hop collective and record label based in Minneapolis, Minnesota.
The podcast covers a range of topics, including presidential interference, prosecutorial discretion, the power to make war, impeachment, and more.
The podcast is available on platforms like Apple Podcasts, Spotify, and TuneIn.
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