Advisory Opinions – “Did Congress Stretch the Commerce Clause Too Far? | Interview: Jonathan Karl”

Podcast by The Dispatch | November 18, 2025
Hosts: Sarah Isgur (A), David French (C)
Special Guest: Jonathan Karl (B), ABC News

Overview & Main Theme

This episode explores the outer limits and modern controversies around the Commerce Clause, focusing on the Supreme Court’s U.S. v. Lopez (1995) and subsequent federal legal developments. Two significant circuit cases — one linked to the Ahmaud Arbery murder (federal kidnapping statute) and another on the federal felon-in-possession-of-a-firearm law (922(g)) — are dissected for their implications on federal power and the continued relevance of Lopez.

In the second half, the hosts interview Jonathan Karl of ABC News about his new book, Retribution, which chronicles the legal drama surrounding Trump’s recent campaign and presidency, pivotal legal battles, pardons, and the inside story of the transitions of power.

Key Discussion Points & Insights

1. The Revolution, Moral Luck, and Historical Factions

[02:07–08:03]

• Sarah and David open with a reflection on the American Revolution and Civil War, highlighting how personal temperament and geography shaped people’s choices and allegiances.
  • Sarah: “We talk about the Civil War...it's almost too obvious...if you were born in Alabama in 1840, we know what side you were gonna be on. The Revolutionary War is a little more interesting...There’s a healthy amount of people who side with the loyalists, the Tories.”
  • David elaborates on how one-third of colonists were Patriots, one-third “late adopters,” and one-third Tories. He speculates on how fear of mobs versus hatred of bullies might have affected his own choices.
• The segment emphasizes the challenge of knowing what would shape personal moral and political decisions in times of division.

2. The Legacy & Limits of U.S. v. Lopez and Commerce Clause Jurisprudence

[08:03–24:30]

• Lopez Recap:
  • Lopez (1995) limited Congress’s Commerce Clause power, striking down the Gun Free School Zones Act as overreach.
  • “If gun violence affects the economy and that affects education...and that affects interstate commerce...the commerce clause is no limit whatsoever on Congress.” — Sarah [10:09]
• Current Relevance:
  • The old conservative/liberal partisan lines from 1995 “don’t look the same as 2025 ideological differences.” New cases show unexpected splits.
• Circuit Cases Discussed:
  • Ahmaud Arbery case (11th Circuit):
    • Issue: Is use of a car in a state-level kidnapping enough for federal kidnapping charges under Commerce Clause?
    • Circuits mostly agree: use of a car = enough for federal jurisdiction (categorical approach), dissent disagrees.
    • “If you used a car or a cell phone...can Congress federalize every state crime if you used a car or cell phone?” — Sarah [15:13]
    • Dissent by a Biden-appointed ex-PD judge argues for real constitutional limits.
  • Controversial Expansion:
    • David: “Few things are more an instrument of interstate commerce than something with wheels that routinely drives across state lines...” [20:05]
    • Both agree: Supreme Court unlikely to take the case due to egregious facts, but the lack of limiting principles is troubling.
  • Historical Context:
    • David reflects: “What we’re still dealing with...is the legacy of Jim Crow—the expansion of federal criminal law was the total failure of state criminal law [in civil rights].” [22:33]

3. Firearm Possession by Felons (922(g)) and Dorm Room Originalism

[29:04–40:15]

• Fifth Circuit Case:
  • Issue: Arnett Jackson Bonner, convicted of violating 922(g) (felon in possession of a gun), challenges constitutionality under originalist principles and Supreme Court’s new Second Amendment jurisprudence (“Brahimi”).
  • Fifth Circuit upholds the law, but Judge Willett’s concurrence questions if 922(g) is actually within Congress’s enumerated Commerce powers.
  • Judge Willett Quote: “It is difficult to see how 922 honors the principle of enumerated powers...Mere possession of a firearm fits uneasily within any of these categories...” [30:48]
• David’s Analysis:
  • If using a blank slate, 922(g) likely unconstitutional; but stare decisis (“the bell cannot be unrung”) and decades of settled law make the Court reticent to unravel broad federal regulation.
  • Discussion of Stare Decisis:
    • Sarah: “Which part of the stare decisis factors are you thinking about?...You don't mean reliance interest, I assume?” [35:13]
    • David: It’s about “how much to defer to the grayness” and “how large a zone” to allow for “doubtful precedent”—not just upholding things one believes clearly wrong. [36:38]
    • Both distinguish “methodology” vs. “outcome”; methodological changes alone aren’t enough to revisit settled law.
• Commerce Clause’s Role in Conservative Legal Movement:
  • Sarah: “Commerce Clause is one of the animating principles [for conservatives,]” but not all precedents will or should be revisited. [37:23]

4. Interview with Jonathan Karl: “Retribution,” Trump’s Trials & Pardons

[41:39–76:59]

a. Origins & Focus of the Book

• Karl’s fourth Trump-era book, “Retribution,” explores the 2024 campaign, the legal drama around Trump, and the first part of his new presidency.
• Title origin: “Come Retribution”—Confederate code word for their plot against Lincoln—repurposed by Steve Bannon to describe Trump’s campaign rhetoric.
  • “Bannon kept on referring to it as the 'come retribution' speech…” — Karl [43:10]

b. The Legal Campaign: Narrative of Trials

• Start/End Frame: Trump as candidate-felon; his daily presence in the “decrepit” New York courthouse.
  • “He used that [courthouse] hallway as his campaign stage...It solidified in his head what he had said months earlier about 'I am your retribution'...” — Karl [45:29]
• The “Weakest Case” Goes First:
  • Both hosts and Karl agree: The New York trial (hush money accounting) was “by far the weakest” and set a damaging precedent for all the other indictments.
  • Memorable Quote:
    • “If you really wanted to see Donald Trump held accountable for his actions, this was the worst possible scenario—a case, as you say, of weak legal ground...” — Karl [49:04]
  • Trump’s campaign narrative (“witch hunt,” “weaponization”) was thus strengthened.
  • “They would not have brought the case but for Donald Trump running again...they really did find the man and go search for a crime” — Sarah [51:07]
• Classified Documents Case:
  • All agree: The most damning and clear-cut, but never went to trial.
  • January 6th Case:
    • Garland/Jack Smith tried to find direct links between Trump and violent actors like the Proud Boys; after chasing down leads (e.g., rumored Las Vegas meeting with Dan Scavino), they found nothing.
    • “That would have been the most damning evidence and the easiest case to make.” — Karl [52:02]
    • Both hosts’ take: Even absent “delays” by Garland, none of the federal cases were ever realistically going to be tried before the election.
    • Even if Garland had been faster, “We were at least two years away still.” — Karl [56:05]
    • Delay driven partly by legitimate but fruitless investigative leads.
• Strategic Outcomes:
  • David: “There was just no scenario where these things were going to be tried before the election.” [57:24]

c. Pardons and Transition Drama

• Trump’s shift toward pledging blanket pardons for January 6th defendants was not immediate, but hardened under pressure from the MAGA base after criticism of J.D. Vance’s more limited stance.
  • “At that point...he basically makes the decision: we’re going to go all in on this.” — Karl [60:19]
• Biden’s last-minute, controversial pardons for his family contrasted sharply with Trump’s mass pardoning, and caused internal chaos in the fading administration.
• Karl details two individuals refusing Trump’s pardon, referencing the Supreme Court case that established the right to reject a pardon:
  • Memorable Quote:
    • “Just because the guy who started the riot says it’s okay, it means absolutely nothing.” — Jason Riddle, one of only two to reject the Trump pardon [68:30]

d. Inside the Inaugural Limo: Metaphor for the Second Term

• The unnoticed phone in the most secure car in the world, planted by Trump’s team in Biden’s seat, is presented as a metaphor: “They know the system now. And also they’re not going to abide by the basic rules.” — Karl [69:43]
• Symbolic of the shift: Trump’s second presidency enters with established knowledge of, and willingness to manipulate, government procedures.

Notable Quotes & Memorable Moments

• Sarah (on Commerce Clause):

  • “If you allow cars and cell phones to be instrumentalities of interstate commerce, the commerce clause has no limitations whatsoever.” [21:14]

• Judge Willet (cited):

  • “Mere possession of a firearm fits uneasily within any of these [Congressional Commerce Clause] categories...hard to imagine a more local crime than this.” [30:48]

• Jonathan Karl (on New York case):

  • “If you really wanted to see Donald Trump held accountable for his actions, this was the worst possible scenario—a case, as you say, of weak legal ground...It didn’t make a lot of sense.” [49:04]

• Jason Riddle (rejecting pardon):

  • “Just because the guy who started the riot says it’s okay, it means absolutely nothing.” [68:30]

• On the phone in the limo:

  • “Trump had somehow gotten his phone pre-positioned in Joe Biden’s limo. This is clearly because his staff knows the Secret Service...a metaphor for—they know the system now.” — Karl [69:43]

Timestamps for Important Segments

• 02:07–08:03 – Revolution vs. Civil War, moral temperament, and self-reflection
• 08:03–24:30 – Explaining Lopez, Commerce Clause, and the Ahmaud Arbery federal kidnapping decision
• 29:04–40:15 – 922(g), “dorm room originalism,” and stare decisis in Commerce Clause context
• 41:39–72:39 – Jonathan Karl interview: Book background, Trump’s trials, January 6th, pardon politics, and transition details
• 68:30 – Jason Riddle’s quote on rejecting the Trump pardon
• 69:43–72:39 – Limo phone anecdote; metaphor for Trump’s second term

Overall Tone

The tone is candid, deeply analytical, and often conversational, with both hosts challenging each other and their guest. The show maintains its trademark blend of legal rigor, historical context, and practical political insight, peppered with humor and palpable concern about constitutional boundaries and political precedent.

Perfect For Listeners Who Want:

• A legal deep-dive into the boundaries of federal power under the Commerce Clause.
• Insightful breakdowns of headline-driving criminal cases and their larger constitutional stakes.
• Nuanced, behind-the-scenes reporting on the Trump-era legal-political maelstrom.
• Historical context mixed with present-day stakes, plus real talk about legal process vs. political storytelling.