Podcast Summary

What Trump Can Teach Us About Con Law

Episode: Farfetched Arguments

Date: July 30, 2024
Host: Roman Mars
Guest: Professor Elizabeth Joh

Overview

In this episode, Roman Mars and Professor Elizabeth Joh break down an “incredible week” in U.S. politics, centered on two major legal issues:

1. Potential farfetched lawsuits to block Vice President Kamala Harris from running as the Democratic nominee.
2. Federal Judge Aileen Cannon’s decision to dismiss the classified documents case against Donald Trump in Florida.

The discussion uses these unfolding events to illuminate constitutional law concepts, focusing on ballot access, “natural born citizen” requirements, campaign finance, and the constitutional basis (or lack thereof) for special counsels like Jack Smith.

Main Discussion Points & Insights

The Political Bombshells of July 2024

[00:52 – 02:05]

• Mars and Joh enumerate an unprecedented week:
  • Trump survives an assassination attempt (July 13).
  • Judge Cannon dismisses Trump’s Florida criminal charges (July 15).
  • President Biden isolates after a COVID diagnosis (July 17).
  • Trump is formally nominated as the GOP candidate (July 18).
  • Biden drops out of the race and endorses Harris (July 21).
• Quote — Joh [01:12]:
  “I think we just lived through what seems like the longest week of 2024 so far anyway.”

Lawsuits to Challenge Harris’s Nomination: Constitutional & Practical Analysis

[03:26 – 09:42]

1. Ballot Access & Timing Arguments

• Some Republicans discuss lawsuits claiming it is “too late” for Harris to replace Biden as the Democratic nominee.
• Joh: Dismisses these lawsuits as “losers,” because:
  • Political parties choose their nominees per their own rules.
  • No state has printed ballots before the Democratic National Convention.
  • States like Iowa allow for last-minute convention outcomes.
• Quote — Joh [04:03]:
  "This claim, let me be clear, is a loser."
• Memorable moment — [05:58]:
  • Mars jokes about the obsessive urge to block Biden from withdrawing: “Yeah, yeah, you can't quit me.”
  • Joh: “Also has, like, a creepy stalker vibe. You can’t quit me.”

2. Campaign Finance Lawsuits

• The notion that Harris shouldn't be allowed to use “Biden’s” campaign funds is refuted:
  • Biden and Harris ran as a ticket; their committee paperwork already included Harris.
  • Paperwork can be amended; timing issues doom any fast legal challenge.
  • Such cases take “years to resolve” and FEC fines wouldn’t bar her candidacy.
• Quote — Joh [07:07]:
  “Any resolution about any problem, real or imagined, about Harris's campaign funding would come long after the 2024 election…”

3. The “Birther” Challenge Redux

• The false claim that Harris isn’t a “natural born citizen” surfaces again, echoing past racist attacks.
• Harris was born in Oakland, California; her parents' origins are irrelevant.
• The conspiracy stems from former Trump legal advisor John Eastman, who misreads the 14th Amendment.
• Quote — Joh [08:33]:
  “Now, it’s also true that both of her parents were not born in the United States. … But where Harris’s parents were born or their citizenship is totally irrelevant to whether Harris is a natural born citizen.”
• Memorable moment — [07:45]:
  Joh on the origins of the claim: “Right? Just plain old racism.”

Judge Cannon’s Dismissal of Trump’s Mar-a-Lago Classified Documents Case

[10:01 – 26:41]

1. Case Background and The Role of Special Counsel Jack Smith

[10:14 – 14:22]

• Trump indicted for willful retention and obstruction in the classified documents case.
• Special Counsel Jack Smith appointed for independence, a process with deep legal precedent (citing Watergate, Iran-Contra, Mueller).
• The role of the special counsel is “widely accepted by lawyers, judges, Congress... unless you’re Eileen Cannon.”

2. Cannon’s Reasoning: The Appointments Clause

[15:03 – 19:54]

• Trump claimed Smith’s appointment was unconstitutional; Judge Cannon agreed.
• The Appointments Clause (Article II, Section 2):
  • Principal officers (cabinet etc.) need Senate confirmation.
  • Congress may allow “inferior officers” to be appointed by department heads (e.g., Attorney General).
  • Cannon demanded explicit statutory authority ("magic words") that do not exist in those terms, so held Smith’s appointment unconstitutional, dismissing charges.
• Quote — Joh [15:50]:
  “Another one of those perfectly clear parts of the Constitution. Right. It's really hard to understand.”
• Key summary — Joh [19:24]:
  “Cannon goes in a direction that really nobody else has... Because Jack Smith was not lawfully appointed, she orders the government to drop the charges against Trump … after the grand jury issues an indictment.”

3. Intellectual Origins and Broader Impact

[20:06 – 26:41]

• Cannon’s opinion echoes Justice Clarence Thomas’s recent concurring opinion, questioning special counsels' constitutionality.
• Quote — Joh [20:26]:
  “His something else was, by the way, I think special counsels are unconstitutional... Judge Cannon took up that charge and ran with it.”

4. What Happens Next?

• Jack Smith will appeal to the 11th Circuit Court of Appeals, which has previously reversed Cannon.
• Cannon’s ruling spawns broader consequences:
  • Hunter Biden’s lawyers now challenge his own special counsel prosecution, using Cannon’s rationale.
  • Only affects Trump’s classified documents case for now; does not impact state cases or other federal cases with precedent upholding special counsel appointments.
• Quote — Joh [23:19]:
  "Understandably, Hunter Biden now has filed legal papers saying, look, if Jack Smith's position is unlawful, so too are the special prosecutors in my case."

5. Potential Actions Against Judge Cannon

• Smith could ask for a new judge but risks further antagonism if denied; focusing on specific biased rulings is more strategic.
• Judge appointment by Trump is a factor, but not always predictive of case outcomes.
• Quote — Mars [26:41]:
  "There's just so much going on. ... Let's just hope that ... a little less news happens just for both of our sake and the country's sake."
• Joh’s closing wish [26:56]:
  "Yeah, let's hope for some boring times."

Notable Quotes & Memorable Moments

• “This claim, let me be clear, is a loser.” — Prof. Joh [04:03]
• “Just plain old racism.” — Prof. Joh (on eligibility attacks) [07:45]
• “Creepy stalker vibe. You can’t quit me.” — Prof. Joh [05:58]
• “Any resolution … would come long after the 2024 election…” — Prof. Joh [07:07]
• “Cannon goes in a direction that really nobody else has.” — Prof. Joh [19:24]
• “If Jack Smith's position is unlawful, so too are the special prosecutors in my case.” — Prof. Joh [23:19]
• “Let's hope for some boring times.” — Prof. Joh [26:56]

Timestamps for Major Segments

• 00:52 – 02:05: Recap of momentous political week
• 03:26 – 09:42: Legal challenges against Kamala Harris
• 10:01 – 14:22: The classified documents case and the role of special counsel
• 15:03 – 19:54: Judge Cannon’s constitutional argument for dismissal
• 20:06 – 26:41: Broader legal and political repercussions; appeal process; strategic issues for prosecutors

Episode Tone and Style

The conversation remains light, engaging, and at times wryly humorous, even when discussing heavy and complex legal matters, consistent with the show’s “Con Law for everyone” approach.

Summary

This episode illustrates how fringe or “farfetched” legal arguments can become vehicles for exploring substantive constitutional questions, especially during turbulent political times. Joh’s explanations clarify why lawsuits to block Harris’s candidacy are meritless, and provides detailed breakdown of the law, precedent, and future prospects for Trump’s criminal jeopardy in Florida and beyond. Mars and Joh’s mix of clarity, candor, and dry wit makes constitutional law accessible, and, as ever, timely.