Podcast Summary
Podcast: What Trump Can Teach Us About Con Law
Episode: Law-Free Zone
Release Date: July 16, 2024
Host: Roman Mars
Expert: Professor Elizabeth Joh
Overview of the Episode: Main Theme and Purpose
This episode tackles the Supreme Court’s landmark ruling in Trump v. United States (July 1, 2024), which addresses the concept of presidential immunity from criminal prosecution—especially as it relates to Donald Trump’s post-election conduct. Roman Mars and Professor Elizabeth Joh unpack how the Court’s decision introduces a "law-free zone" around the presidency, discussing the implications for constitutional law, democracy, and the rule of law in America. The episode uses clear hypotheticals and back-and-forth analysis to bring these legal concepts into accessible focus.
Key Discussion Points and Insights
1. Historical Context of Presidential Immunity
- Previous Supreme Court Precedents:
- Clinton v. Jones (1997): A sitting President can be sued civilly for acts before taking office.
- Nixon v. Fitzgerald (1982): A President has absolute immunity from civil suits for acts within official duties.
- Until now, the Supreme Court had not ruled on criminal liability for a former President.
Quote:
“Until this year, the Supreme Court hadn't decided a case about the potential criminal liability of a former president.”
— Professor Joh [06:30]
2. The Trump Federal Indictment & “SEAL Team 6” Hypothetical
-
Trump indicted for four types of conduct after the 2020 election:
- Pressuring state officials/electors (fake slates for certification)
- Pressuring DOJ for sham investigations
- Pressuring Pence to reject certification
- Encouraging the January 6th Capitol riot
-
The outlandish but Supreme-Court-raised hypothetical:
What if a President ordered SEAL Team 6 to assassinate a political rival?
Could a former President be prosecuted for that?
Quote:
“But what if a president acting as commander in chief ordered SEAL Team 6 to shoot and kill his political opponent... Could such a president be criminally prosecuted after he left office? This hypothetical has come up not just once, but twice... And this crazy scenario cuts right to the center of the Supreme Court's decision...”
— Professor Joh [01:09]
3. The Supreme Court’s Three-Tier Immunity Framework
-
Category 1 – Core/Conclusive Presidential Powers (Bullseye):
- Absolute immunity from criminal prosecution for core constitutional powers (e.g., recognizing foreign nations, pardon power).
- Congress cannot interfere, even with generally applicable laws.
-
Category 2 – Official Acts Within Outer Perimeter:
- Presumptive immunity for acts within "outer perimeter" of presidential duties.
- Government must prove prosecution poses "no danger" to executive authority.
-
Category 3 – Unofficial Conduct:
- No immunity for unofficial acts; former Presidents can be prosecuted.
Quote:
“Think of a bullseye with a target, a series of concentric circles... category three, unofficial conduct is not protected... At the very center... the President has absolute immunity from criminal prosecution... In the middle is official conduct that doesn't receive absolute immunity. But... a presumption of immunity...”
— Professor Joh [09:57–14:32]
4. Restrictions on Prosecuting the President
- Courts cannot investigate the President’s motives for official acts.
- Even if the motive is clearly corrupt, it’s off-limits as evidence.
- Government cannot use official acts as evidence in unrelated criminal charges (e.g., can’t use records of official meetings to prove bribery).
Quote:
“Under this new analysis... a court cannot consider the president's motives. We're only looking at the conduct itself. Even if that would be relevant in proving a case in any other kind of ordinary criminal prosecution.”
— Professor Joh [15:48]
Quote:
“In order to prosecute a case for bribery... the government would probably want to rely on evidence of official acts... but the court says, nope, that's not allowed.”
— Professor Joh [16:58]
5. Ambiguity on ‘Official’ vs. ‘Unofficial’ Conduct
- The Court left critical questions unresolved:
- Is pressuring DOJ or Pence official?
- Is pressuring state officials unofficial?
- Is inciting a crowd an official act?
- Most Trump conduct linked to 2020 election remains unclassified by SCOTUS; lower courts must now decide.
Quote:
“The Supreme Court refused to classify any of Trump's actions in the election interference case as unofficial.”
— Professor Joh [25:01]
6. Impact on Ongoing Criminal Cases
- Supreme Court delay ensures no criminal trial for Trump before the 2024 election.
- Trump will use the immunity doctrine to attempt delaying or dismissing other cases (Georgia, Florida, New York).
- In New York, Trump is arguing for immunity even though his crimes occurred pre-presidency.
Quote:
“Everyone agrees that there is now zero chance of an actual trial before the election. No chance. And that, of course, is a lot has to do with the Supreme Court itself.”
— Professor Joh [26:41]
7. The Supreme Court’s Risk Calculation & Justice Sotomayor’s Dissent
- Court fears “revenge prosecutions” chilling bold presidential actions more than abuse of unchecked presidential power.
- Justice Sotomayor warns the ruling creates a “law-free zone” for the President, offering disturbing hypotheticals that the majority does not refute.
Quote:
“Justice Sotomayor accuses the majority of creating what she calls a law free zone around the president.”
— Professor Joh [31:13]
Quote:
“Orders the Navy’s SEAL Team 6 to assassinate a political rival. Immune. Organizes a military coup to hold onto power. Immune. Takes a bribe in exchange for a pardon. Immune. Immune. Immune.”
— Prof. Joh, quoting Justice Sotomayor’s dissent [31:26]
Quote:
“For a court that really wants things to be part of either the text or history and tradition... the idea of absolute immunity, presumptive immunity and no immunity... kind of comes out of nowhere.”
— Professor Joh [37:10]
Timestamps for Important Segments
- [00:49] Osama bin Laden raid and SEAL Team 6 hypothetical introduction
- [06:30] Legal background: presidential immunity and prior cases
- [09:57] Breakdown of new Supreme Court “bullseye” framework
- [15:33 - 16:10] Ban on court inquiry into presidential motives
- [16:53] Bribery and evidence limitations
- [18:18–22:00] Applying the framework to Trump’s alleged conduct
- [26:41] Consequences for ongoing criminal cases, including delay
- [29:01] Supreme Court's risk calculation: boldness vs. lawlessness
- [31:13] Sotomayor’s “law-free zone” dissent and chilling hypotheticals
- [34:44] Theoretical flaws and “expansiveness” of immunity
- [36:08] The role of fear in presidential accountability
Notable Quotes and Memorable Moments
-
On the President’s immunity from prosecution:
“In all of these things, are we talking about the issue of immunity in the abstract or the danger of Trump in the particular?”
— Professor Joh [33:57] -
On precedent and Supreme Court logic:
“For a court that is sort of like completely ensorceled by the idea of history and tradition, [that it] can't look at the history of the presidency and look at that they have not had their hands tied by this type of fear is just sort of beyond me.”
— Roman Mars [36:52] -
On the new role of SEAL Team 6 in constitutional law:
“Now SEAL Team 6 is part of the canon of constitutional law.”
— Professor Joh [37:42]
Critical Analysis and Closing Thoughts
- The hosts express deep concern that the Supreme Court is treating the question as a theoretical or classroom problem, rather than reckoning with the real-world danger posed by Trump’s actions.
- Broad presidential immunity is unprecedented and not grounded in constitutional text or historical practice.
- The practical effect is to make prosecution of ex-presidents extremely difficult, if not impossible, for acts connected to their office.
- The chilling hypotheticals (e.g., ordering assassinations or taking bribes) now have constitutional credence, with no clear limiting principle articulated by the Court.
- The hosts close reflecting somberly:
“We usually try to find something light hearted… but this was a hard one… There’s no silver lining in this one.”
— Roman Mars [32:05]
In summary, the episode is a sobering, insightful analysis of Supreme Court doctrine with potentially radical consequences for American democracy and accountability—delivered in the hosts’ accessible, skeptical, and engaged style.