Amarica's Constitution

As oral argument in the Trump immunity case draws closer, we continue our discussion of presidential immunity from criminal prosecution. Do so-called “official acts” during a president’s tenure in office raise special considerations? Constitutional text seems to offer an easy way out of the case - but does it, really - and historical precedents enter the conversation. Ultimately, some basic principles of immunity emerge, which leaves us with a much richer understanding of the many issues than a bland look the text alone would Meanwhile, a listener’s question takes us abroad for a change, and developments in Arizona remind us of several of our podcast’s recurring themes. CLE credit is available by visiting podcast.njsba.com after listening.

Former President Trump is making an extraordinary claim to the Supreme Court: that he is immune from criminal prosecution for crimes he may have committed while president. The Court has agreed to hear arguments on this proposition on April 25. We begin the preparation by posing the questions and taking them on. Professor Amar is an expert on Presidential immunities. Our analysis goes through originalism as well as precedent. This and subsequent episodes form an oral amicus brief of sorts - another “master class,” if you will. We also take a listener’s question seriously as we address the Comstock Act and related issues. CLE credit is available at podcast.njsba.com.

The Supreme Court heard the case on the legality of FDA regulation of Mifepristone. Issues of standing seemed to dominate, so Professor Amar treats us to a master class on standing - in this case, and its recent evolution. He also suggests that at least one Justice might benefit by attending. In a wide-ranging episode, we also share excitement and some new scholarly insights that emerged from the recent EverScholar program led by Akhil and others; and the Trump gag order gives rise to some musings as well. There’s a lot for everyone in this episode, including CLE available from podcast.njsba.com.

We round up our analysis of the opinion in Trump v. Anderson with Justice Barrett’s concurrence. All of this has raised many questions, particularly in light of the Court’s errant reasoning and other shenanigans. And it turns out that many of the best questions come from you, our audience! So we turn to those as well, both about Section 3, and other matters as well. We also look at the news media’s latest interesting directions, including takes on Justice Breyer’s new book and seeds planted by Professor Amar bearing fruit. CLE credit is available from podcast.njsba.com

The Trump v. Anderson lead balloon continues to smolder. This episode looks at the areas wherein the concurring Justices took issue with the per curiam, and they are many. Indeed, the three Justices who concurred only in the judgment disagree with the scope of the per curiam as well as its particulars, and their concurrence reads more like a dissent. Can we find areas of agreement with ourselves and the concurrences? What can we learn from all this? CLE credit is available from podcast.njsba.com.

The concurrence by three Justices (as opposed to that of Justice Barrett) in Trump v. Anderson concurs only in the judgment. We look at different types of concurrences and why a Justice might choose one type or the other; and as for this one, we find much to dissent with. We dissect the arguments and now with the benefit of a week since the opinion, we “slow it down” and take you carefully through the logic and illogic we find. Can we locate common ground among justices who claim to be unanimous but in fact significantly diverge? And how do we address our own position, which seems to lie firmly opposed to the entire Court? CLE credit is available from podcast.njsba.com.

The Court has ruled in Trump v. Anderson, and a strange day it was. An announcement on a Sunday of opinion on Monday; no justices present; metadata weirdness, and worst of all, a unanimous opinion that is unanimously wrong. Concurrences that are dissents. A nearly 250 year old electoral college system that somehow escaped the Justices. Notorious cases cited with approval. The opinion is a veritable patchwork of error. The autopsy begins.

We’re back, and still waiting for the opinion in Trump v. Anderson, which gives us a chance to highlight important new evidence that has come to light - thanks in large part to Professor Amar’s great law student team. It fatally undermines what seemed likely to be the reasoning the opinion was going to take. Will it matter? This is related to the role amici play in the Court ecosystem, and we look at how another case we had a brief in, Moore v. US, seemed to be possibly influenced by our brief by beginning our long-promised clip-based analysis of that oral argument. So a whole lot in a compact episode. CLE is available from podcast.njsba.com.

As promised, we return in very short order with the completion of our analysis and response to the oral argument in Trump v. Anderson - before the Court has ruled. Again, key clips from the argument are played and dissected. The previous Part I episode concentrated on arguments concerning self-execution of Section Three; this episode reviews many of the other issues addressed by the Court, from questions of the nature of the Presidential Election and the closely related Electoral College, to the persistent irritant of "officer" and "office" questions. As in the prior episode, Professor Amar “slows everything down” to allow you and hopefully the Court avoid sweet-sounding but flawed paths. This episode is posted 8 days early for this reason. Continuing legal education credit is available; visit podcast.njsba.com after listening.

EARLY UPLOAD - The Supreme Court heard oral arguments in Trump v. Anderson on Thursday, and we were so alarmed by the errant direction they took that we decided to take to the air early. Here are key clips from the argument dissected - exposed, really - to reveal the mistaken representations of the meaning of certain cases; the ignoring of key facts which then distort others; the absence of key lines of argument; and the danger that the Court may be headed for another debacle on the scale of Bush v. Gore. Professor Amar “slows everything down” so the sometimes subtle misdirection that a fast-paced oral argument can induce is neutralized, creating clarity that we can only hope some Justice or some clerk sees in time. This episode is posted 4 days early for this reason, and next week’s will follow later this week as well. CLE credit is available from podcast.njsba.com beginning Monday, February 12.

Oral arguments are scheduled for this Thursday in the Trump v. Anderson case, concerning the possible disqualification of former President Trump from the ballot in Colorado, and with a myriad of questions surrounding Section Three of the Fourteenth Amendment at stake. We have something new to offer, as the distinguished historian, Professor Ted Widmer, joins us to add his considerable expertise to the oh-so-timely topics of John B. Floyd and the conspiracy to prevent the certification of Abraham Lincoln’s election with the aim to prevent his inauguration and otherwise cripple the Union during the Secession Winter. This was of course integral to our amicus brief in the case, and this podcast offers additional support for its theses. We also review the promised “20 questions” that the brief explored - the perfect review or reference as the Court faces this vital case that has gripped the nation. CLE Credit is available from podcast.njsba.com.

Oral arguments are approaching in the Trump v. Anderson case, and the nation is talking about little else. At the Harvard Law School, Professor Amar is invited to debate a former US Attorney General and Federal Judge, Michael Mukasey, who also submitted an amicus brief in the case together with Bill Barr and Ed Meese, among others. We analyze the debate - and the brief. And in that brief, Akhil identifies what he considers to be an egregious error, which is telling not only in its fatal weakening of the particular argument, but in the way it calls into question the entirety of their brief, and how it points the way to needed reforms in the legal ecosystem as a whole. This is an indispensable episode. CLE credit is available from podcast.njsba.com.

The legal world is abuzz with the impending oral arguments in Trump v. Anderson in a couple of weeks. In the forefront are the powerful arguments and compelling history that are introduced in the amicus brief from the Professors Amar. We continue to delve into the principal lines of reasoning in the brief, and how they take the starch out for some of the tropes that were found in the media. When you take the history one step at a time it is hard to escape the obvious parallels with the actions and inactions of ex-President Trump, and how they precisely align with the concerns the framers of the Fourteenth Amendment had that prompted them to advocate for and ultimately author, pass, and successfully ratify Section Three. Will the Court see it this way? Time will tell, but follow the discussion as we take you through it. CLE credit is available from podcast.njsba.com.

The “brothers-in-law” Vik and Akhil Amar have filed an amicus brief in Trump v. Anderson et al. The brief contains a dramatic historic episode that you almost certainly knew nothing about, and which is highly relevant - perhaps decisive - to the case. Prepare to be amazed by this story of the “First Insurrection,” which preceded and was distinguishable from the Civil War itself, and which makes clear the certain intent of the framers and ratifiers of the Fourteenth Amendment - and the course the Supreme Court should take in this case. This, and the episodes to follow, may be the most important episodes we have offered in the more than three years of this podcast. CLE credit is available from podcast.njsba.com.

The months of discussion of Section Three on Amarica's Constitution now make their way to Washington, as cert has been granted in Trump v. Anderson. Amicus briefs will pour in - including the brothers Amar's brief. We present some of the approach the brief will take, and we look at the nine Justices, taking account of their jurisprudential history and styles, and discuss how an intellectually honest brief-writer can make their best arguments even better by considering how their readers will read them, and what might be most useful to provide to those readers. It's not quite "handicapping" but it is insightful, as all America is wondering if this case might actually result in the removal of Donald Trump from Colorado's primary ballot, and eventually possibly more states' ballots as well. It has come to this.

The nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well. Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise. We continue our attempt to help you make sense of these by choosing pieces that make the range of arguments out there. We do our best to present their argument and respond to it, bringing Professor Amar’s considerable armamentarium to bear for your benefit. And this week, Akhil has at least two - maybe three - major new ideas he brings to the national discussion. They can be found here first. CLE credit is available from podcast.njsba.com.

The Colorado Supreme Court opinion on disqualifying Donald Trump, though long anticipated, landed like a tornado. Op-eds, pundits, academics, officials - all are weighing in. It’s a victory for democracy - no, it’s antidemocratic. Section Three is a dead letter - no, it’s self-executing. Trump is out - no, this helps him. America is reaffirmed - no, there will be violence in the streets. Liberals are split; conservatives are split. What will the Supreme Court do? Spend some time with Amarica’s Constitution and we will help you make sense of it, and we will present the best and worst arguments out there. And - get some CLE for your trouble! Visit podcast.njsba.com after listening.

The administrative state is up for grabs, some say, in the case of SEC v. Jarkesy, which was argued before the Supreme Court recently. We have another “clip” episode, with Akhil weighing in on attorneys and justices alike. It’s particularly appropriate in this case, because so much of the case concerns juries and the 7th amendment - which, by the way, Akhil has written extensively on. That’s probably why he’s cited in so many of the briefs. We also heard some noise out of Colorado, by the way. CLE credit is available for this episode from podcast.njsba.com.

The question of Donald Trump's disqualification under Section 3 of the 14th Amendment is before the courts. Last week the Colorado Supreme Court heard appeals of the District Court rulings. As they consider their decision, we have the privilege of hearing from the nation's two leading experts on the subject, the author of The Sweep and Force of Section Three - the universally acknowledged definitive article. (Note: this episode is uploaded a day early because of the timing of the case.) They respond to the arguments made in court, as well as those that have been put forth in media and elsewhere - and we also consider the two other cases, in Michigan and Minnesota. The previous appearance by Profs. Baude and Paulsen were the highest rated episodes in Amarica's Constitution's 3 years, and this may be even more important for clerks, judges, and citizens to hear and consider.

There is no shortage of tributes to the just passed Justice Sandra Day O’Connor, and rightly so, and this first female Justice richly deserves praise and memory. We aim to offer a tribute by taking her seriously as a Justice of ideas as well as the frequently mentioned deeply human remarkable woman she was. Fortunately, Akhil’s career has been intertwined with Justice O’Connor’s in a remarkable back-and-forth of ideas, cases, refinement, and legal innovation, so our perspective is a deeply informative one. Among other things, we look at the 10 most significant areas of jurisprudential impact in this remarkable but somehow underestimated to the end titan. CLE credit available after listening from podcast.njsba.com.