What Roman Mars Can Learn About Con Law

In the aftermath of the Civil War, the Disqualification Clause was adopted to ensure that former officials and soldiers in the Confederacy would be barred from serving in public office.

And for the first time in 153 years, an elected official has been disqualified for future office for his role in an insurrection: a New Mexico county commissioner who marched to the Capitol on January 6, 2021.

Voters have filed lawsuits against Trump, arguing that the former president?s role in inciting his followers to disrupt the election certification makes him an insurrectionist, and therefore, disqualified from becoming president again. What does all this mean for Trump and his 2024 presidential candidacy? 

Gag orders are usually put in place to protect a defendant's right to a fair trial by limiting inflammatory statements. What happens when it's the defendant making the inflammatory statements and that defendant is a current candidate and former President of the United States?

On August 14, Fulton County District Attorney Fani Willis announced that the grand jury had returned a criminal indictment against Trump and eighteen other defendants for what they did in the days and weeks after the 2020 election. The story told by the indictment is that this group were part of a criminal enterprise that worked towards one singular goal: overturn the 2020 presidential election results in Georgia.

One of the people indicted is former White House Chief of Staff Mark Meadows. He is trying to get his case tried in federal court instead of Georgia state court. 

In his petition, Meadows cites a 1899 case about margarine.  Yes, margarine.

19th century "zombie" laws are shambling into the abortion debate. The Comstock Act of 1873 made it illegal to send ?obscene, lewd or lascivious,? ?immoral,? or ?indecent? material through the mail. Does that include abortion pills?

Comstock Zombies

On April 4th (that?s tomorrow as I record this) former President Trump is expected to be arraigned in a Manhattan court room. He was indicted by a New York grand jury last week but the exact charges against him remain unknown until he appears in court. On Thursday last week, Elizabeth Joh and I recorded an episode all about the Manhattan District Attorney?s investigation into Trump?s alleged hush money payments and the New York grand jury deliberations. About an hour after we finished that recording, the grand jury indictment was announced. All the reporting so far has indicated that the charges and circumstances around the alleged crimes conform to everything we discussed on March 30th last week, so I thought releasing this was still valuable even though it?s a developing story.

New York's 3rd Congressional District elected a newcomer named George Santos in November of 2022. Since the election, it was revealed that Santos lied about nearly everything on his resume. What does the Constitution say about lies, punishing lies, and  punishing someone who lies to get elected? Time to find out!

It?s been established law that it is wrong for businesses to discriminate against customers because of their race or ethnic background, but what if a business owner refuses to serve someone because of their sexual orientation? And what if that business owner asserts that serving a gay customer violates their first amendment rights?

How the Dormant Commerce Clause tries to stop states from passing laws that put an undue burden on interstate commerce and what that means for states that wish to forward specific ethical agendas. Plus, what's going on with student debt relief: who filed a lawsuit against it and why.

When the FBI executed a search warrant on his home, Trump and his lawyers filed their complaints in a district where they thought they?d get sympathetic treatment from Judge Aileen Cannon, who Trump appointed. The assignment of a particular judge is not up to Trump, but in this case, he got lucky, and Cannon was assigned. How did Trump?s gamble on getting his case in front of Judge Cannon work out? Let?s find out.

The official court order that permitted the search of Mar-a-Lago was made public, and even though much of it was redacted, there is a lot of information about what the government was looking for and which crimes the DOJ are investigating .

In the final week of the  most recent term, the Supreme Court decided to limit one constitutional right (abortion) and expand another constitutional right (guns). But there were other cases decided that week, which were also important and marked this as one of the most historically significant terms in over 100 years. So what happened in those other cases and why are they so important?

What have we learned from the January 6th Committee hearings and what does is mean for a potential Justice Department investigation of Trump?

The Dobbs v. Jackson Women's Health Organization decision has overturned  Roe v. Wade and revoked the right to abortion, a Constitutionally guaranteed right we have had for about 50 years. What happens now?

The recent mass shootings and a New York gun carrying permit case awaiting a decision from the Supreme Court calls for an examination of the current interpretation of the Second Amendment. The Heller decision from 2008 is the foundation of modern thought on the subject, but that decision is based on guessing what law makers thought hundreds of years ago.

The January 6th committee investigation uncovered unhinged texts from Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, that implicated her in the riot on the Capitol. The release of the Trump White House records that led to the discovery of the texts was an issue that was decided by the Supreme Court. In an 8-1 decision the Court ordered the records released. The lone dissenter was Clarence Thomas. What are the ethical rules for conflicts of interest and the appearance of impartiality on the Supreme Court?

Plus, a new district court judge throws out the mask mandate.

On May 2, 2022 a draft majority opinion written by Justice Alito was leaked to the press. His draft opinion on Dobbs v. Jackson Women?s Health Organization overturns Roe v. Wade and puts many other constitutional rights the court has guaranteed under the 14th Amendment under threat.

Trump's improper dealing with Ukraine was what led to his first impeachment. While most of us were focused on the domestic political implications of Trump's actions, the country of Ukraine was put into jeopardy in a way that many didn't fully realize until the recent Russian invasion. Time to revisit the first Trump impeachment now that we know more about who was on the other end of that phone line and the imminent danger they were in.

A school district in Tennessee voted to ban the graphic novel Maus from their curriculum.  Because of a case called Pico (1982) the school board's stated objection to the material had to be very carefully worded as to not violate the First Amendment. Now a number of bills limiting the teaching of Critical Race Theory and the 1619 Project are also making their way through state legislatures. What can the government do about the books in the school library and the classroom and what does the Constitution say about it?

Plus we talk about the nomination of Ketanji Brown Jackson to the Supreme Court.

What two rulings about COVID vaccine mandates tell us about the future of the Administrative State under this  configuration of the Supreme Court. Plus updates on Texas abortion rights, Executive Privilege in the Jan 6 investigations, and Breyer!

Supreme Court cases from Mississippi and Texas are challenging  long upheld precedents that established abortion rights. Reproductive rights, and many others, are not explicitly referenced in the Constitution, but are considered fundamental because of the presence of the word "liberty" in the 14th Amendment. 

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 

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?

The "Shadow Docket," Texas's SB 8, and the state of abortion rights in the US

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.

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

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?

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?

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 location specific cell phone tower data dump without an individual suspect in mind. This brings up questions about the way warrants usually work under the Fourth Amendment.

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?

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.

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.

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?

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.

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??

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.

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

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 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?

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.

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.

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?

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.

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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?

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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?

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!

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!

What is Congress? contempt power and how can they use it to force people to cooperate with their investigations?

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.

What does the 25th Amendment say about presidential fitness, disability, and Trump?

Trump has threatened to revoke Birthright Citizenship with an executive order. This proposed order contradicts the Fourteenth Amendment, but Trump?s tweets contend otherwise.