Episode Summary
Executive Summary: Roman Mars reintroduces his side podcast “Trump Con Law,” where UC Davis law professor Elizabeth Jo uses Trump-era controversies to teach constitutional law. The episode centers on impeachment and the uncertain question of whether a sitting president can be criminally prosecuted, using historical examples (West Humphreys, Andrew Johnson, Clinton, Nixon, Agnew) to show how constitutional checks work, where the text is silent, and why Trump’s norm-breaking presidency made these issues newly urgent.
Main Topics: Trump Con Law as a constitutional teaching project (Priority: 5/5): Mars explains the podcast’s origin: using Trump’s norm-breaking behavior and tweets as prompts for a calm, historically grounded constitutional law class with Elizabeth Jo. Impeachment as a constitutional process (Priority: 5/5): The episode breaks down impeachment into House charges and Senate trial, clarifying that impeachment is not the same as removal and is meant as a rare emergency check on officeholders. West Humphreys and the historical purpose of impeachment (Priority: 4/5): A Civil War-era federal judge who defected to the Confederacy but kept his federal judgeship illustrates why impeachment exists even during national crisis: to remove officials threatening constitutional order. Limits and ambiguity of ‘high crimes and misdemeanors’ (Priority: 5/5): The show emphasizes that impeachable conduct is not limited to ordinary crimes; Congress has discretion to judge threats to democracy, while the Constitution leaves many details unresolved. Can a sitting president be prosecuted? (Priority: 5/5): The second episode examines conflicting legal opinions, DOJ memos, and case law on whether a president can be indicted or tried while in office, concluding the Constitution does not clearly answer the question. Trump-era obstruction concerns (Priority: 5/5): Flynn, Comey, Mueller, and Trump’s tweets are used to explore whether presidential acts like firing the FBI director or asking for an investigation to be dropped could constitute obstruction of justice. Institutional friction and democratic stability (Priority: 4/5): The discussion weighs equal justice under law against the practical danger of prosecuting or removing a president, highlighting the risk of paralyzing the executive branch and the rarity of these remedies.
Key Arguments: Impeachment is a two-step constitutional process: the House brings charges, and the Senate conducts the trial and votes on conviction. ‘High crimes and misdemeanors’ is not limited to statutory crimes; Congress can treat behavior threatening constitutional democracy as impeachable even if it is not a crime. A president can be impeached, but the Constitution does not clearly say whether a sitting president can be criminally prosecuted while in office. Historical precedent is mixed: Clinton and Johnson were impeached but remained in office; Nixon resigned before a full House vote; federal judges have been the only officials actually removed by Senate conviction in these examples. The Constitution’s text leaves many impeachment details unspecified, so understanding depends on history, House/Senate rules, and practice. Legal memos from the Clinton and Nixon eras disagree: one argued a sitting president can be prosecuted, while DOJ guidance argued the opposite on structural grounds. Trump’s conduct and the Flynn/Comey episode raise the possibility of obstruction, but the episode stresses these are speculative constitutional questions rather than proven charges. Even if prosecution were legally possible, it could be destabilizing because a president cannot easily receive a fair trial and the presidency is uniquely central to government functioning.
Data Points: Days since Trump took office: 975 days - Mars opens by describing the exhausting news cycle after Trump’s first 975 days in office. Start of Trump Con Law: June 2017 - The podcast with Elizabeth Jo began as a recurring constitutional law series tied to Trump’s actions and tweets. West Humphreys impeachment year: 1862 - The House impeached Humphreys during the Civil War after he joined the Confederacy while retaining a federal judgeship. Humphreys conviction duration: a couple of hours - The Senate trial of West Humphreys is described as the shortest impeachment trial in American history. House impeachments ever: 19 - The episode notes the House has impeached only 19 people in U.S. history. Senate impeachment trials ever: 16 - Only 16 impeachment trials have been held by the Senate. Senate convictions/removals: 8 - Only eight people have been convicted and removed by the Senate, all of them federal judges. Kenneth Starr memo page count: 56 pages - Ronald Rotunda’s memo for Starr on prosecuting a sitting president was 56 pages long. Flynn guilty plea date: December 1, 2017 - Trump-era prosecution discussion centers on Michael Flynn’s plea agreement and cooperation with Mueller. Trump meeting with Comey: February 14, 2017 - Trump reportedly asked Comey to ‘let Flynn go’ the day after Flynn resigned; Valentine’s Day is specifically noted. Nixon resignation date: August 9, 1974 - The episode references the same day Nixon resigned in relation to DOJ memos on prosecuting a president. Ford pardon date: September 8, 1974 - Ford’s pardon of Nixon ended any realistic prosecution of Nixon after resignation. Clinton impeachment year: 1998 - Used as a benchmark example of House impeachment without Senate removal. Andrew Johnson impeachment year: 1868 - Johnson is cited as another president impeached but not removed.
Pivotal Quotes: "Impeachment is a remedy for constitutional democracy that's built into our Constitution itself, an important legal process, even in the midst of a national crisis." — Roman Mars: Explaining why West Humphreys’ Civil War impeachment still mattered to the constitutional system. "The answer is, we just don't know for sure." — Roman Mars: Concluding the discussion of whether a sitting president can be criminally prosecuted under the Constitution. "It is a shame because his actions during the transition were lawful. There was nothing to hide." — Donald Trump: Trump’s tweet about Michael Flynn is used to examine potential obstruction-of-justice concerns.
Implications: The episode frames impeachment and presidential prosecution as rare, high-stakes constitutional tools with major gaps in the text. For listeners, it shows that modern crises often force institutions to interpret old rules under pressure.