In July 2024, the Supreme Court ruled in Trump v. United States that a president cannot be prosecuted for official acts, and it drew the boundaries of “official” wide enough that the federal cases against Donald Trump were simply dropped after the election. Two years later, federal agents are seizing a sitting congresswoman’s phone, and the administration the ruling protected is the one conducting the investigation. Meanwhile, close to two million people sleep in American jails and prisons on any given night, and exactly one Wall Street executive went to prison for the financial crisis that cost millions of families their homes. “Equal Justice Under Law” is carved above the Supreme Court’s front door. It has never described what happens inside.
What if the problem runs deeper than a few bad rulings or timid prosecutors? If treating everyone the same in a country this unequal is one of the ways the powerful slip free, what should we want instead? Can we ask for harsher punishment of elites without feeding the machinery that built mass incarceration? And who gets to decide which crimes count as attacks on democracy itself, when the people doing the deciding are elites too?
Our guest is Jacob Abolafia, Leigh’s colleague in the Department of Philosophy and Religion at American University. Jacob studies the history of political thought from ancient Athens to the present and is the author of The Prison before the Panopticon: Incarceration in Ancient and Modern Political Philosophy (Harvard UP, 2024). We dig into his Yale Law Journal Forum essay on Trump v. United States, which argues that democracies once understood that the powerful need watching, and that a democratic criminal law would go easier on ordinary people and harder on the few whose crimes threaten self-government.
Grab a drink and join us as we ask who gets to stand above the law, and what it would take to haul them back down.
In this episode, we discuss the following thinkers, ideas, texts, etc.:
- National Geographic, “This Toad Is Fighting for Survival—and It Has a Lawyer”
- Jacob Abolafia, The Prison before the Panopticon: Incarceration in Ancient and Modern Political Philosophy
- Jacob Abolafia, “‘Safety, in a Republican Sense’: Trump v. United States, Democracy, and an Antisubordination Theory of the Criminal Law”
- Jesse Eisinger, “The Rise of Corporate Impunity” (ProPublica)
- Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2025”
- Plato, The Republic
- Trump v. United States (2024)
- Alexander Hamilton, James Madison, and John Jay, The Federalist Papers
- Carl Schmitt
- United States v. Trump (D.C. Cir. 2024)
- Associated Press, “Rep. Ilhan Omar’s phone seized and relatives subpoenaed in criminal probe, AP source says”
- The Rule of Law
- Alexis de Tocqueville, Democracy in America
- Gerald R. Ford Presidential Library, “Pardon to Richard Nixon, September 8, 1974”
- Jeffrey Reiman and Paul Leighton, The Rich Get Richer and the Poor Get Prison: Thinking Critically about Class and Criminal Justice
- Nixon v. Fitzgerald (1982)
- Boston Globe, “JD Vance comments on Richard Nixon and Watergate”
- Jürgen Habermas
- PBS News, “Influential German philosopher Jürgen Habermas dies at 96”
- Danielle Allen
- The Markup, “Crime Prediction Software Promised to Be Free of Biases. New Data Shows It Perpetuates Them”
- Thomas Hobbes, Leviathan
- Michel Foucault, Discipline and Punish: The Birth of the Prison
- NPR, “Warren Buffett: Please, Raise My Taxes”
- Internal Revenue Service, “Foreign Account Tax Compliance Act (FATCA)”
- Feminist Philosophy of Law
- Angela Y. Davis, Abolition Democracy: Beyond Empire, Prisons, and Torture
- Vincent Chiao, Criminal Law in the Age of the Administrative State
- Niccolò Machiavelli
- John P. McCormick, Machiavellian Democracy
- James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe
- Legal Punishment
- Plato, Laws
- Thomas More, Utopia
- Jeremy Bentham
- Robert Martinson, “What Works? Questions and Answers about Prison Reform”
- James Q. Wilson and George L. Kelling, “Broken Windows”
- New York State Attorney General, “Donald J. Trump Pays Court-Ordered $2 Million For Illegally Using Trump Foundation Funds”
- JURIST, “France court upholds Marine Le Pen conviction but allows presidential run”