Meet the Faithless Electors

David and Sarah discuss ‘unmasking’ and Michael Flynn, Supreme Court oral arguments over the president’s ...

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David and Sarah discuss ‘unmasking’ and Michael Flynn, Supreme Court oral arguments over the president’s financial records and “faithless electors,” and Wisconsin administrative law.


Show Notes:

–The Flynn case isn’t over until the judge says it’s over

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  1. Avatar photo
    Bruce Mamont

    Belated commentary on the "historical series" mentions. I was surprised that David didn't mention "Band of Brothers" and "From the Earth to the Moon". Both were produced quite a while ago, but I think hold up to anything available.

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  2. The Peripatetic

    Apparently, Rule 48(a) was not intended to be pro-defendant; rather it was intended to address just the kind of suspicious dismissal at stake in the Flynn case. See this recent paper by Prof. Frampton: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674

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  3. DieHardTrojan

    I have a new conspiracy theory. My analogy of the crazy Flynn universe is a snow globe. Just about the time the insanity settles down. The Circus Ringmaster shakes up the snow globe. Just maybe David is the Ringmaster. What better situation to supply David and Sarah with talking points. Just saying.....

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    Jonathan Nebel

    I am not sure what I think about whether the Constitution allows a statement government to prosecute a sitting President.

    I do know that I definitely want a tv series based on a President being arrested by a state and trying to execute the duties of his office while in prison. You can even make it unclear whether the President actually committed the crime he is charged with.

    The best part: have Jonathan Frakes play the President and call it “Commander-in-Rikers.”

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    Kevin Johnson

    Great stuff. It would be good to hear David and Sarah response to McCarthy and Turley (legal experts) and Ely Lake, John Podhoretz, Kim Strassel (pundits/reporters) on Flynn affair. It seems like David is mostly answering twitter crowd rather than answering reasonable, smart observers who are more bothered by this than David is. Thanks.

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    William Hultman

    I like both the Last Kingdom and the Tudors, but my favorite historical TV series is Wolf Hall, based on books by Hilary Mantel, which are even better that’s the series.

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  7. James Calvert

    David and Sarah, Re your discussion of historical miniseries - Why no mention of the outstanding '80s series, "The Winds of War" and "War and Remembrance?" These cover, in a historically accurate fashion, the entirety of WWII. They are a bit dated in terms of style - very much a 70s-80s miniseries ethos - but superb acting (apart from Ali McGraw), high production values, and a gripping narrative that deftly interweaves a fictional family's story with historical events. Based on Hermann Wouk's two monumental books of the same names. Have you seen these? If not, you should.

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    Billehrich85

    This is a great podcast. David, I want you to know that you're not alone in your position regarding the president being subject to state prosecution. Presidents are absolutely immune from federal criminal prosecution. Article II leaves us no other choice. The president is the nation's chief law enforcement officer Therefore, he cannot be expected to (in essence) prosecute himself. However, presidents absolutely do not run state governments, nor are state governments subordinate to the federal government. They have their own criminal codes, under which presidents are subject to prosecution for breaking said codes. The Constitution says nothing about presidents being exempt from anything. They are exempt from federal prosecution while in office for reasons listed above. They are not exempt from state prosecutions. Donald Trump could indeed end up at Rikers for shooting a person on 5th Avenue.

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  9. Kevin Dolan

    You all are so sanguine about the unmasking. I just don't understand it except that you're congenitally unable to side with the Trump administration even in the face of Nixon-like abuses of power by the Obama administration. Which didn't start in late '16/early '17 by the way.

    I didn't vote for President Trump (or Hillary) in '16 and don't think he is particularly fit for office, but if the option is to put the Democrats back in power, it's going to be tough to make the case for another protest vote.

    Love all your podcasts and newsletters and articles. Even when you're wrong. :)

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  10. J.J.B.

    I wasn't going to comment, but the Sarah said she wanted mail so here it is: David is obviously right. Not only are the States separate sovereign entities, but the Founders knew how to protect an office from legal interference. Article I, Section 6 protects Congress members from most crimes while in session or going to and from a Congressional session. They could have done the same with the President, but they did not. There seems to be no good Constitution reason for the assumption that the President is protected from arrest.

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      Barry Cope

      I believe that this is exactly correct. In the founding era I believe that the States looked upon themselves as superior to the federal government in all things not expressly delegated to the feds in the Constitution. I don't believe that any state would have stood for a federal official violating any state laws.

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        hajaXavier

        Finally, a first. I disagree with Sarah! JJB and Barry, can’t agree with you (and David) more!

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        1. PM

          I'm just accustomed to the whole federal, state, and local discussion where federal law trumps state and local. But this is really about the order of execution, right? Does anyone doubt that a presidential murderer would be both impeached and tried for murder?

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            Eston

            Didn't Burr shoot Hamilton while VP? Not quite a president shooting someone on Fifth Avenue, but close. Was he arrested?

            I agree that the right order for the events is for a presidential murderer to be impeached (and then removed from office on conviction), and then arrested and tried for murder. It wouldn't work for some city or state (with, say, elected state attorneys and elected judges -- both of the other party) to be able to charge and arrest a president. Obviously the President can't make bail -- he's a flight risk with Air Force 1 waiting for him.

            Bad facts, bad law -- in the "founding era" everyone believed Washington was above reproach. I didn't know Washington, and Washington was not a friend of mine, but the current POTUS is clearly no Washington.

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