Dissenting in Concurrence

Donald Trump’s New York trial - where a conviction would be federal pardon-proof - has proceeded apace. we are pleased to bring a report to you from the trial itself, introducing you to one of Professor Amar’s star students in the process. Are there constitutional issues stemming from the trial?  You bet, and we address some of them. Meanwhile, a number of listeners have asked similar questions recently, so we take that family of questions on, and sure enough, there’s a lot to discuss there as well.  CLE credit is available from pdcast.njsba.com after listening.

This week we continue with clips from the oral argument in the immunity case (Trump v. United States).  Most of this week’s clips come from attorney Dreeben (representing the Special Counsel, and therefore the people of the United States), and some of the Justices have at him, sometimes in way Professor Amar finds wrong-headed or worse.  Our own argument is brought to bear upon these controversies, and a consistent way of addressing these questions emerges.  Clarity on the argument emerges.  CLE credit is available from podcast.njsba.com.

The nine Justices heard arguments on ex-president Trump’s attempt to claim a sweeping immunity from criminal liability and prosecution.  We present clips from the argument and our commentary, including some historical analysis of claims that Benjamin Franklin spoke in favor of such a thing (spoiler:  NO), and many other claims which we had predicted in recent weeks.  There is clear acceptance of some of the arguments we have made by many of the Justices, but questions remain to be sure, and we begin to address them in this first part of a planned two-episode arc of clip and comment.  CLE credit is available from podcast.njsba.com.

As we close in on oral argument in the Trump v. United States case wherein Trump asserts some sort of permanent presidential immunity, we close out our preparatory analysis.  Impeachment’s relationship to criminal prosecution is explored.  Some founding-era conversations involving, for example, John Adams, inform our discussion.  Does the concept of double jeopardy play a role? Our hope is that these episodes prepare you for the oral argument with a comprehensive theory of how no one is held above the law even as a powerful executive sits high in We the People’s government.  CLE credit is available after listening from podcast.njsba.com.

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.