The Federalist Papers

How Trump’s lawyers would fail my constitutional law class with their Supreme Court brief on criminal immunity

Retrieved on:

Wednesday, April 3, 2024

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On March 19, 2024, Trump filed his brief with the U.S. Supreme Court in the case brought by special counsel Jack Smith for Trump’s alleged criminal attempts to overturn the 2020 election.

Key Points:

On March 19, 2024, Trump filed his brief with the U.S. Supreme Court in the case brought by special counsel Jack Smith for Trump’s alleged criminal attempts to overturn the 2020 election.
To support his contention, Trump cites Supreme Court cases, the Federalist Papers, and other writings from legal scholars.
If a student of mine had submitted a brief making the arguments that Trump and his lawyers assert in their Supreme Court filing, I would have given them an F.

Sitting in judgment

But it is not standard practice to characterize those cases and documents as saying one thing when they say the complete opposite.
Trump begins by citing Marbury v. Madison from 1803, which is one of the court’s most consequential cases.
Trump also argues that, according to the Constitution, “federal courts cannot sit in judgment directly over the President’s official acts.” This assertion is contrary to scores of cases where federal courts have reviewed presidential acts.
That act grants the secretary of education the authority to “waive or modify” student loan programs during national emergencies.

Citing Kavanaugh

But the main legal question remains – whether a president holds, as Trump claims, absolute immunity from criminal investigations and prosecutions for a president’s official acts.
From a policy perspective, Trump claims that “functional considerations” warrant the absolute immunity that he seeks because if a president is subject to criminal liability, that legal exposure “will cripple … Presidential decisionmaking.”

To further this claim, Trump relies on a 2009 law review article by Judge Brett Kavanaugh, then of the U.S. Court of Appeals for the District of Columbia Circuit, who now sits on the Supreme Court.
Trump quotes Kavanaugh, who wrote that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” which Trump provides as evidence of support for the position that a president requires absolute immunity.
But even a cursory reading of Kavanaugh’s article reveals that Kavanaugh argued only for a deferral of a criminal prosecution until after a president leaves office.

Civil cases vs. criminal cases

Trump urges the court to extend the presidential immunity established in this civil case to criminal matters.
But he overlooks the fundamental difference between the civil justice system and the criminal justice system.
The purpose of the civil justice system is to make an injured party whole again.
But the purpose of the criminal justice system is to protect society, because crimes are understood to be harms against the public.

Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

New Book Calls on States, Local Communities to Improve U.S. History and Civics Education

Retrieved on:

Wednesday, October 25, 2023

Pioneer Institute, Democracy, Government, The Federalist Papers, History, Reading, School, City, Constitution of the United States, Curriculum, Student, Teaching, United States Declaration of Independence, Nursing

"The importance of a strong U.S. history and civics curriculum cannot be overstated.

Key Points:

"The importance of a strong U.S. history and civics curriculum cannot be overstated.
It's long past time for states and local communities to take an active role in recommitting to history and civics instruction."
The book calls for a bottom-up approach and delves into recommendations for state and community leaders to reform U.S. history and civics standards.
"Our book urges states to adopt U.S. history and civics curriculum that will equip students with the knowledge they need to be informed participants of our democracy."

Judge J. Michael Luttig and Elizabeth A. Luttig Loan Rare Copy of the Federalist Papers to the National Constitution Center

Retrieved on:

Monday, September 25, 2023

The Constitution of the United States of America: Analysis and Interpretation, National Constitution Center, Constitution, 1st Congress, Freedom, Federalist, The Federalist Papers, Government, Independence Hall, First Session, Publication, New Rochelle 250th Anniversary half dollar, First Amendment to the United States Constitution, Artifact, Constitution of the United States

PHILADELPHIA, Sept. 25, 2023 /PRNewswire/ -- The National Constitution Center just announced that Judge J. Michael Luttig and Mrs. Elizabeth A. Luttig have acquired and will loan to the National Constitution Center in perpetuity a first-edition, two-volume set of The Federalist, widely considered to be the most important commentary on the Constitution of the United States and America's most significant contribution to political theory.

Key Points:

Judge and Mrs. Luttig have also acquired and will loan to the National Constitution Center a rare original printing of the Acts of the First Session of the First Congress, for display with The Federalist in a new gallery.
These historically significant volumes from the Founding period will inspire visitors to the National Constitution Center for generations to come."
The National Constitution Center just opened the new First Amendment gallery on September 6—the first in a series of new galleries.
Additional details and photos of the artifacts are available on the National Constitution Center website, ConstitutionCenter.org .

Why Trump's prosecution for keeping secret documents is lawful, constitutional, precedented, nonpartisan and merited

Retrieved on:

Friday, July 14, 2023

The federal charges – the first against a former president – listed 37 counts of obstruction of justice and wrongful retention of classified documents after Trump left office in January 2021.

Key Points:

The federal charges – the first against a former president – listed 37 counts of obstruction of justice and wrongful retention of classified documents after Trump left office in January 2021.
The unfairness claim often involves a comparison to Hillary Clinton, Trump’s 2016 presidential opponent, who was not charged in an investigation into her handling of government documents.

A former president can be charged

Trump and his allies have argued that it is completely inappropriate for the former president to be charged.
But no part of the Constitution, no statute and no Supreme Court precedent sets a former chief executive above the law.

Not a partisan prosecution

Navigating these shoals is challenging because under the U.S. Constitution, the executive branch is headed by the sitting president, and it includes the Justice Department.
That means there will always be at least a potential risk of “weaponization” of prosecution – or just the risk of that allegation – when the defendant is in a different party from the president.
In contrast to President Thomas Jefferson’s detailed direction of the prosecution of political adversary and former Vice President Aaron Burr, there is no credible evidence that Biden is telling the prosecutor what to do.

The charges have merit

Trump claims that he had an “absolute right” to take the documents.
In reality, when Trump left office he lost the presidency’s authority to possess presidential records and national security documents.
By law, documents of former presidents and national defense information must be stored by the National Archives or other federal agencies.

Not comparable to Biden, Pence or Clinton

The law concerning government documents and national defense information requires willfulness for criminal liability – basically, keeping documents you know you should not.
Other statutes criminalize lying to investigators, other obstruction of justice and getting others to commit crimes.
In Trump’s 2016 campaign, he criticized former Secretary of State Hillary Clinton for her use of private email systems, including to send emails with classified information.

Echoes of Reality Winner and Edward Snowden

Those include cases in which people once had lawful access to secrets but knowingly stole and shared them to make political points.
A junior Air Force linguist, Reality Winner, unlawfully removed one top-secret document and sent it to the media because she thought the public should know about it.
Winner was prosecuted during Trump’s presidency and sentenced to five years in prison.
One of the same Espionage Act provisions under which Trump has been charged with over 30 counts.
Both Trump and Petraeus were charged under the same Espionage Act sections and the same law criminalizing lying to investigators.

High School Senior Releases Middle Grade Fantasy Novel The Young Federalists to Spark Interest in The Federalist Papers

Retrieved on:

Tuesday, December 6, 2022

Readlinger wrote The Young Federalists after reading The Federalist Papers during her freshman year of high school.

Key Points:

Readlinger wrote The Young Federalists after reading The Federalist Papers during her freshman year of high school.
"The Federalist Papers are consideredone of the most important sources for interpreting and understanding the original intent of the Constitution," said Readlinger.
Homebound during the pandemic, Readlinger had the time to create The Young Federalists, which is presented as a fantasy novel.
She hopes the book will spark interest in The Federalist Papers for kids before they enter high school.

Hillsdale College Sends A Record Three Million Pocket Constitutions Nationwide

Retrieved on:

Tuesday, November 15, 2022

Hillsdale College has distributed a record-setting number of Pocket Constitutions as part of its mission to increase constitutional understanding and civic education across the country.

Key Points:

Hillsdale College has distributed a record-setting number of Pocket Constitutions as part of its mission to increase constitutional understanding and civic education across the country.
The Hillsdale College Pocket Constitution is a small booklet containing the Declaration of Independence and the U.S. Constitution.
This year, Hillsdale has sent more than three million Pocket Constitutions to schools, individuals, businesses, and legislators across the nation a substantial increase from last years 863,000.
After learning about the U.S. Constitution, students at a Michigan elementary school, wrote letters to Hillsdale College to request Pocket Constitutions.