Did President Trump’s January 6 speech prior to the attack on the Capitol constitute the crime of incitement? Is it necessary to demonstrate that it did in order for the Senate to find him guilty of incitement as a high crime and misdemeanor under the Impeachment Clause and convict him? What are the relevant legal and constitutional standards? Catherine Ross, George Washington University Law School professor and author of the forthcoming book A Right to Lie? Presidents, Other Liars, and the First Amendment, and Josh Blackman, professor of law at South Texas College of Law in Houston whose work has been cited by President Trump’s defense team during this second impeachment trial, join host Jeffrey Rosen to debate those questions.Some terms that will be helpful to know this week: “The Brandenburg test”: In Brandenburg v. Ohio (1969), the Supreme Court established that speech could be punished in a criminal trial only when the speech is: “directed to inciting or producing imminent lawless action” AND “likely to incite or produce such action” Impeachment: per Article II, Section 4 of the Constitution, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Resources and transcript available at constitutioncenter.org/interactive-constitution/media-libraryQuestions or comments about the show? Email us at podcast@constitutioncenter.org.

What are executive orders, and how has the Biden administration used them thus far? Presidential power experts Cristina Rodriguez, professor at Yale Law School and author of The President and Immigration Law, and Michael McConnell, professor at Stanford Law School and author of The President Who Would Not Be King, join host Jeffrey Rosen to answer those questions and more. They recap what they think are the most notable executive actions President Biden has taken in his first weeks in office, what their implications might be, and how they are being challenged, before reflecting on presidential power more broadly.To see the full list of executive actions discussed in this episode, visit the National Archives Federal Register page “2021 Joe Biden Executive Orders”Resources and transcript available at constitutioncenter.org/interactive-constitution/media-libraryQuestions or comments about the show? Email us at podcast@constitutioncenter.org

A mob stormed the U.S. Capitol on January 6, leading to a ricochet of effects including the impeachment of President Trump. On this episode, experts Larry Kramer, president of the William and Flora Hewlett Foundation, and Colleen Sheehan, Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership, explore the history of mobs past and present, online and in-person. They discuss how “good” versus “bad” mobs played a role at the Founding, and how concerns about mobs influenced the political and constitutional thought of Founders including James Madison. They also trace how different types of mobs evolved over time and were seen as illegitimate especially around the Civil War, as well as what has fueled mobs—particularly online mobs—today, including disinformation and social media. They conclude with some thoughts on potential reforms, including the need for more civic education and protections for free speech. Jeffrey Rosen hosts.Resources and transcript available at constitutioncenter.org/interactive-constitution/media-libraryQuestions or comments about the show? Email us at podcast@constitutioncenter.org.

Judge J. Michael Luttig, formerly of the Fourth Circuit Court of Appeals, and Professor Keith Whittington of Princeton join host Jeffrey Rosen to consider how to interpret the constitutional text and historical precedent surrounding the question of whether the senate can hold President Trump’s impeachment trial now that he’s left office.Judge Luttig explains why he thinks that the president cannot be tried and convicted by the senate after he has already left office, and why only the Supreme Court can answer the question of whether Congress can hold an impeachment trial for a former president. Professor Whittington details his view that a former president can be tried and convicted, and that it’s a purely political question up to the senate to ultimately decide.Resources and transcript available at constitutioncenter.org/interactive-constitution/media-libraryQuestions or comments? Email us at podcast@constitutioncenter.org.

The House of Representatives voted to impeach President Trump for a second time this week, with a vote of 232 in favor, 197 against, and 4 not voting. Prior to the vote, host Jeffrey Rosen sat down with two experts on the Constitution and presidential power—Cristina Rodriguez of Yale Law School and Michael McConnell of Stanford Law School. They shared their thoughts on the article of impeachment passed by the House; the charge against President Trump of incitement of insurrection in the wake of the mob invasion of the U.S. Capitol; the meaning of high crimes and misdemeanors under the Impeachment Clause; if Section 3 of the 14th Amendment should be invoked to disqualify President Trump from holding office again; how the current media and information landscape may have contributed to polarization and events culminating in the riot; what reforms might help; and more. Professor McConnell is the author of the new book The President Who Would Not be King, and professor Rodriguez is the co-author, with Adam Cox, of The President and Immigration Law.Additional resources and transcripts available at constitutioncenter.org/constitution/media-libraryQuestions or comments about the podcast? Email us at podcast@constitutioncenter.org.

In the early morning on January 7, 2021, Congress certified President-elect Biden’s Electoral College victory after a pro-Trump mob stormed the U.S. Capitol. This episode reflects on the historic and constitutional significance of the events of “a date which will live in constitutional history.” Host Jeffrey Rosen was joined by Judge J. Michael Luttig, formerly of the U.S. Court of Appeals for the Fourth Circuit, and Dean Erwin Chemerinsky of Berkeley Law. They discuss the president’s debunked claims about the 2020 election results that sparked the riot; whether President Trump’s words at a rally held in Washington, D.C., on January 6 count as incitement under the law; what the blocking of President Trump’s social media accounts by Facebook and Twitter afterward means for freedom of speech; and what the unprecedented nature of the events means for the future of the country.Additional resources and transcripts available at constitutioncenter.org/interactive-constitution/media-library.Questions or comments about the show? Email us at podcast@constitutioncenter.org.

A panel of experts dives into what early American founding figures—including Thomas Jefferson, John and Abigail Adams, George Washington, Mercy Otis Warren, and Phyllis Wheatley—learned from the Greeks and Romans, from their early education through adulthood, and how that knowledge came to influence founding documents such as the Constitution and Declaration of Independence and the scope and shape of the American republic. They also explore the founders’ philosophical understanding of passion versus reason, the meaning of “happiness,” and how ancient philosophy continued to influence American democracy throughout turbulent times including the Civil War. Historians and authors Caroline Winterer and Carl Richard and Pulitzer Prize-winning journalist Thomas Ricks joined National Constitution Center President and CEO Jeffrey Rosen.This program originally aired on our companion podcast, Live at the National Constitution Center. Check it out on Apple Podcasts, Spotify, or wherever you listen to catch up on the live constitutional conversations we hosted in 2020.Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-libraryQuestions or comments? Email us at podcast@constitutioncenter.org.

2020 was a tumultuous and eventful year—starting with the impeachment trial, and then the COVID-19 pandemic, crucial conversations about racial inequality, the death of Justice Ruth Bader Ginsburg and addition of Justice Amy Coney Barrett to the Supreme Court, as well as the 2020 presidential election and ensuing court battles over it. How did the Constitution, and American institutions, prevail throughout? John Yoo, a professor at Berkeley Law who previously served in the Bush administration’s Justice Department, and Melissa Murray, a professor at NYU and co-host of the Supreme Court podcast Strict Scrutiny, reflect on that question and look back at the major events of 2020 through a constitutional lens. Jeffrey Rosen hosts.Additional resources and transcript available at https://constitutioncenter.org/interactive-constitution/media-library.Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Article II, Section 2, of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This episode explores presidential pardons past and present—from Thomas Jefferson’s pardons of people convicted under the Sedition Act, through President Carter pardoning Richard Nixon and George H.W. Bush pardoning those involved in the Iran-Contra scandal, to President Trump’s exercise of the pardon power today. Experts Brian Kalt of Michigan State Law School and Saikrishna Prakash of the University of Virginia Law School answer questions including: Can the president pardon himself? What does the history say? What are the limits of the pardon power? Does someone admit guilt when they accept a pardon? How might the Supreme Court rule on pardons? And more, in conversation with host Jeffrey Rosen. Additional resources and a transcript are available at constitutioncenter.org/interactive-constitution/media-library.Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Supreme Court recently granted a preliminary injunction against (i.e. temporarily blocked) New York’s COVID-19 restrictions on attendance at houses of worship (pending further litigation), siding with the Roman Catholic Diocese of Brooklyn and two orthodox Jewish synagogues, who argued that the restrictions violated the free exercise of religion guaranteed by the First Amendment. Constitutional law experts Michael Dorf of Cornell Law School and David French of The Dispatch join host Jeffrey Rosen to unpack the decision, the restrictions at issue, and broader questions including: Has the Supreme Court become more open to claims of religious discrimination? And, in the context of the ongoing pandemic, does and should the Supreme Court still apply its usual judicial tests to determine if something is constitutional? They also explain the role of prior cases crucial to understanding the modern debate in the area of religious freedom law—from Employment Division v. Smith to Masterpiece Cakeshop and beyond.Questions or comments about the show? Email us at podcast@constitutioncenter.org.