Episode 32: Could Prosecuting the Former President be Bad for American Democracy?

Some countries have fallen into a toxic cycle of tit-for-tat prosecutions, where every ex-president has to expect they’ll eventually end up behind bars. Could the U.S. be next? Two constitutional experts warn that some of the criminal cases against Donald Trump could cause cycles of retribution that poison our politics. And why our saving grace just might be — get this — government bureaucracy.

Please note: Our show is produced for the ear and made to be heard. Transcripts are generated using a combination of speech recognition software and human transcribers, and may contain errors. Please check the audio before quoting in print.

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Anyone who’s ever bitten their nails on election night knows that democracy can be a chancy affair. If your candidate wins, you pop champagne and celebrate. If your candidate loses... you may need to pour yourself something a lot stronger — and watch your would-be champion accept defeat in public. You can take at least some comfort in knowing your contender can go lick their wounds, regroup, and run again — or maybe retire to a nice life of making speeches and hobbies.

But, as with so many other norms, the last losing American president has defied this one too.

ARCHIVAL Newscaster 1: A stunning fourth indictment against former President Donald Trump.

ARCHIVAL Newscaster 2: Trump faces 91 felony counts. 91!

ARCHIVAL Pundit 1: Donald Trump is not above the law. He can’t do whatever he wants.

ARCHIVAL Pundit 2: We've never done this to a president before. Nevermind the leading candidate for the GOP nomination.

She's right. It's never been done to an American president before. But if we’re inclined to take some of the rhetoric at face value, could this just be the beginning of a new era of office-holders and candidates trading threats of retribution?

ARCHIVAL Donald Trump: If I win, and somebody wants to run against me, I call my attorney general, I say, “Listen, indict him. I don't know. Indict him on income tax evasion. You'll figure it out.”

The four indictments against former president Donald J. Trump on charges ranging from fraud to election interference may be unprecedented in American history, but there are countries where presidents get prosecuted a lot. Where one of the first orders of business for today's new leader is throwing yesterday's guy in jail:

ARCHIVAL Reporter: Peruvians are of two minds about what must surely be a world record for the most ex-leaders behind bars at one time.

ARCHIVAL Newscaster 1: In fact, Peru has a special penitentiary for erstwhile presidents. It is full.

It sounds wild, but it's true. Peru does have a special prison for ex-presidents. And it really is full.But Peru’s not the only country where leaders routinely wind up in court or in jail. Take Pakistan for example.

ARCHIVAL Newscaster 2: Imran Khan is Pakistan’s seventh former prime minister to be arrested, and members of his political party calling for protests.

Or… South Korea:

ARCHIVAL Newscaster 3: This is now the fourth president who has been jailed since leaving office.

So with a sitting U.S. president whose Justice Department has indicted his political rival…

ARCHIVAL Newscaster 4: Former president Trump making his first public appearance since being federally indicted…

With Trump’s allies claiming that these indictments are just purely political…

ARCHIVAL Trump Attorney: The government has had three years to investigate this, and now they want to rush this to trial in the middle of a political season. What does that tell you?

And with those Trump allies lashing out against President Joe Biden…

ARCHIVAL Lauren Boebert:  I have introduced articles of impeachment to impeach Joe Biden and save our country!

And Trump now saying if he’s elected again there will be some sort of payback— even though it can be argued that he’s the one who started all of this…

ARCHIVAL Hillary Clinton: It's just awfully good that Donald Trump is not in charge of the law in our country.

ARCHIVAL Donald Trump: Because you'd be in jail.

ARCHIVAL Crowd: [CHANTING] Boo, lock her up! Lock her up! Lock her up!

Given all of this, is the United States headed down a road towards someplace like Peru… or Pakistan… or South Korea… where it seems most leaders can reasonably expect to be impeached or indicted or even thrown in jail at some point? And how can we avoid doing that?

You're going to hear from a pair of researchers who've spent years studying questions just like this. They wrote a book together whose title makes it sound as timely as swimming lessons in flood season. It's called How to Save a Constitutional Democracy.And they propose some ideas that might infuriate or comfort you, depending on where you stand…

Tom Ginsburg: In the case of prosecuting a former president, the standard should be very high. They actually should be allowed to get away with some things that ordinary people would not be able to get away with.

Aziz Huq: Prosecutors every day — every day — exercise their discretion to show mercy in some cases, and to recognize that bringing a criminal case will have costs.

And they explain what could be at stake if the U.S. gets these cases wrong...

Aziz Huq: You've gone to a world in which we’re just trying to kneecap the other guys. And that's a much more fraught and fearsome world.

I'm Peter Bergen, and this is In The Room.

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Tom Ginsburg and Aziz Huq are both professors at the University of Chicago Law School, and they frequently research and write as a team. In the middle of the Trump presidency — the same year they published their book about saving a constitutional democracy — they also co-authored a paper together titled, "How to Lose a Constitutional Democracy." It seems pretty emblematic for a research duo who tend to agree on the facts of the case, but not necessarily the framing.

Aziz Huq: So he's always a glass-half-full person, and I've always been a glass-half-empty person.

Tom Ginsburg: Maybe because he's British. I'm not sure. I'm a Californian. You know, it's always sunny in California. The future’s always bright.

Their work is not just poring over legal documents and writing academic papers. They’ve also advised countries on the writing and reform of their constitutions.

Aziz Huq: We actually met, both of us were working in Afghanistan post the invasion and we were both working and for different organizations on constitutional reform. And we met on a street in Kabul. And the first piece we wrote together was about the Afghan constitution. And the only big argument that we had about it was, I wanted to end with something saying, ‘and this whole project is doomed for the following eight reasons.’ And he was like, ‘No, no, no! We need to say that it might succeed!’

So we have the cautious Brit, Aziz Huq — he’s an expert in U.S. constitutional law. And the more sunny Californian, Tom Ginsburg — he focuses on comparative and international law. Both agree on a basic principle: that democracies need transfers of power between their heads of state to happen peacefully and without fear of retribution for the loser.

Tom Ginsburg: Look, in a democracy, we need the right to vote people out of office. That's what the essence of democracy is. If a leader's doing a bad job, they have to go. Therefore, we want them to know that if they go, they're still going to be okay. They're not going to be punished too badly. You want the leader to be able to know that they can leave peacefully.

You don’t want to get into a pattern of jailing every outgoing leader. Imagine their incentives to cling to power if they think they might be going straight from the halls of power to time in prison. And you especially don't want today's president throwing yesterday's president in jail for a crime that seems trivial to lots of voters. Doing that risks alienating those voters. It also risks making the courts look political. And it risks leaving the old president's supporters feeling like they can't re-group and try again. Jailing their candidate doesn't leave them much incentive to keep DOING democracy.

Tom Ginsburg: And the way I like to think about it is you have certain countries where obviously the bargaining among political parties, the bargaining between political parties is broken down. So they escalate things, immediately to very high levels. But once you have that kind of situation, all political energy goes into the fight among parties, which is zero sum and high stakes.

And that's among the reasons why Ginsburg and Huq think it's important to carefully balance the rule of law and democracy: When is it worth pursuing a political leader for alleged crimes in the name of the rule of law? And when is it worth letting things slide in the name of democracy?

Tom Ginsburg: Accountability is important in a democracy. But, legal accountability is only one tool. We also have political accountability. When you lose an election, that's a form of political accountability. Sometimes we have to forgive and forget in order for the country to move on. We should be focused on the future and not on the past, as much as possible. We have some examples. Obama and his administration declined to prosecute the torturers in the CIA who tortured the men in Guantanamo. We, as a country, forgave the Bush administration for that. And they went away. George W. Bush is on his ranch in Texas. And, you know, it's over. We move on as a country.

Let’s take the four cases that have embroiled former president Trump. Ginsburg thinks that just moving on as a country is a better option than pursuing what I'll call case number one.

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That's the case being brought against Trump by Manhattan District Attorney Alvin Bragg. Bragg charged Trump with falsifying business records in connection with covering up $130,000 worth of hush money paid to the porn star Stormy Daniels.

Tom Ginsburg: Trump may have committed a crime there, but boy, we've already had two elections and it just seems very much, I think, to the ordinary Republican voter, at least, as if, wow, just something where this particular prosecutor is going after really old stuff. I think for some people, depending on their starting point on this issue, it really does look like a quote, witch hunt, unquote, where they would go after Trump no matter what. So I think that was a bad prosecution. It's not about the future.

Then there's what we’ll call case number two. This is the case where a grand jury in Florida indicted Trump on charges of taking classified White House documents to his residence in Mar a Lago and then hindering government efforts to get those documents back.

Tom Ginsburg: When I first heard about it, I thought, ‘documents, you know, ah really? If he kept his like letter from Kim Jong Un, we're really going to go after that?’ But it's apparent that this was a willful and gratuitous attempt to keep documents just because he could. And I happen to have spent some time in the State Department. I worked there for a summer, and I will tell you, if you brought a document home, you were going to jail. And they made that absolutely clear. So this is something where there's a reason for these laws. And of course, Trump's political oeuvre is to show that ordinary rules don't apply to him. So it's almost like a gratuitous thing he was doing. And I did change my mind and think that that is a good prosecution.

And here's where it's worth mentioning something that probably occurred to you already. Sure, the principle Ginsburg lays out makes some sense. Getting into a pattern of going after ex-presidents for arguably trivial crimes politicizes the courts, alienates voters who like the guy, and creates a situation where there’s little incentive to peacefully hand over power.

But, it seems that what crimes count as trivial — what kinds of presidential misbehavior we might let slide — really is a matter on which smart people can disagree. Even co-authors of the same book. Huq, for example, disagrees with Ginsburg about Trump’s classified documents case.

Aziz Huq: So in my view, there is a big, big difference between the prosecutions that have been brought against Trump both by Alvin Bragg in New York and by the special counsel Jack Smith in Florida — which do not concern things that are central to the obligations of a president — and the prosecutions that have been brought in Washington and in Fulton County, Georgia, which go right to the heart of Trump's core infidelity to his oath of office.

So let's talk about this second set of prosecutions against Trump. We'll call them cases three and four.

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Case number three: A grand jury in Washington D.C. handed up an indictment accusing Trump of attempting to exploit the violence and chaos during the January 6th riot at the U.S. Capitol. Trump’s accused of calling up lawmakers and trying to convince them to delay certifying Joe Biden's 2020 election victory.

And then there’s case number four, where a grand jury in Atlanta, Georgia, indicted Trump and 18 other people. Prosecutors said Trump and the rest of them participated in an illegal scheme to overturn the results of the 2020 election by interfering with the work of election officials in Georgia.

Aziz Huq: Were I making decisions about these matters, I would draw a really clear line between the second set of prosecutions — which to my mind, challenged the core infidelity that Trump demonstrated toward the American democratic project — and the other prosecutions which are very much incidental to that betrayal of the Oath of Office. I recognize that the particular example of abusing classified documents, misusing, mishandling them in the Mar a Lago case is a particularly egregious one. I nonetheless think that one of the costs of democratic life is that you've got to forgo a certain amount of criminal justice and I think that that prosecution should not have gone ahead.

Peter Bergen: I think what you're suggesting is, in the interest of a polity that's relatively united, there might be some criminal cases that you shouldn't pursue.

Aziz Huq: I think there needs to be a kind of band of tolerance around elected officials and those likely to run again for office. But that band has its limits. If the elected politician violates the core obligations of their oath of office by using democratic power against the project of democracy, then you use the criminal justice system against them. It is a prosecution who's overt aim is to reinforce through deterrence the norms and rules which are necessary for our democratic life.

Peter Bergen: Would it make sense for President Biden to pardon Trump for some of these crimes, just like Gerald Ford pardoned Richard Nixon?

Aziz Huq: So just as a legal matter, the president has no power to pardon individuals in state prosecutions. So the only pardon power that is applicable here concerns the two cases that have been brought by Jack Smith in Florida and in Washington. I think that Biden should have issued a pardon with respect to the Florida prosecution. I think that politically I understand why he hasn't done it, but I do think that underscoring the importance of avoiding the criminalization of politics is tremendously important.

Peter Bergen: In the Florida case, which involves the classified documents that were being retained at Mar a Lago, you think that it would be wise for Biden to pardon Trump in that case?

Aziz Huq: I think it would have been wise, this is not going to happen, it's all hypothetical. The prosecutions that are being brought in Florida with respect to the misuse of classified documents are tangential to the project of maintaining democracy.

Professor Huq is using law school vocabulary, but what he's basically saying is that the Florida case — case number two on our list earlier — counts as the sort of thing we ought to forgive and forget. He's not saying it's trivial, exactly, but unlike his co-author Tom Ginsburg, Huq thinks enough voters see the classified documents case as essentially trivial and that going through with prosecution would be bad for democracy. When we asked him to explain the risk this kind of prosecution could pose, he stepped out of the law school classroom and gave us an explanation borrowed from the playground.

[SCHOOLYARD SOUND EFFECTS]

Aziz Huq: I think that the most likely bad result is... a kind of tit for tat dynamic emerging. You see this playing out with kids, in fact, right? So, you know, there are two groups of kids. One kid picks on somebody in the other group and, you know, while they're playing soccer, and goes out of their way to trip them. And the guy who's tripped, all of their teammates are like... man, we're gonna go after this other guy, and we're gonna trip him. And you can quickly see how you go from working together in the sense that you're all trying to play soccer, to a world in which you're not playing soccer anymore, you're just trying to trip the other guys up. That's destabilizing. You've gone from a world in which everyone understands that they're playing this game, which we call soccer, to a world in which we're just trying to kneecap the other guys. And that's a much more fraught and fearsome world.

This is a great analogy because it shows why you’ve gotta let some stuff slide for the sake of keeping both teams in the game. But the analogy also shows that you don't have to let everything slide.

There's some misconduct, like say a fistfight on the field, that breaks the game up itself. And when misconduct like that happens, punishing it actually preserves the game — or democracy — and sends a message to everyone involved that encourages them to keep playing. Now the tricky part is figuring out what kind of misconduct rises to that level.

Aziz Huq: I think that it's easy, as a layperson, to assume that well if there’s a crime and the government knows who committed it, the government is obliged to move forward against that person. I don't think that's a necessary component of the rule of law, and I don't think it's how our system works. Our system is one in which the criminal law is incredibly expansive. It is practically impossible for any prosecutor at the federal or the state level to bring charges and to obtain convictions in all of the cases that come to his or her attention. As a consequence, prosecutors every day — every day — exercise their discretion to show mercy in some cases and to recognize that bringing a criminal case will have costs. And it is absolutely appropriate and absolutely consistent with the rule of law for a prosecutor to exercise judgment that, ‘while I could bring this prosecution, it will not do good in the world.’

Peter Bergen: You mentioned the word deterrence. After January 6th, there's been a thousand cases of people who were involved in one way or another in that riot. Obviously we've had sentences, some of them, pretty lengthy against the Proud Boys, 22 years. I do think that has had an important deterrent effect. I mean, my evidence for that is if you look at the Trump indictments in Florida, in D.C., in New York, and also in Georgia, very few people showed up, and there was really no civil unrest, because I think people are reading about these sentences and the system has sort of asserted itself in a way that I think is quite healthy.

Aziz Huq: I think that that's right. I agree with that.

And Ginsburg says that it’s worth prosecuting a president who commits crimes against the democratic process itself. He thinks case number four — the election interference case in Georgia — is an example of such a crime. And he thinks the deterrent effect of prosecuting it extends beyond the leader responsible for the wrongdoing.

Tom Ginsburg: I want to say something that may be a little unconventional here, but I think it's really important. The target of the prosecutions is not Trump. The target of the prosecutions are people like Mark Meadows.

Mark Meadows served as Trump’s White House chief of staff from 2020 to 2021.

Tom Ginsburg: And that's really, really, really important. The rule of law is sustained not by some leader who's internalized its values, but by people around the leader who will resist an illegal order because they know that if they follow it, they're likely to be subject to some future sanction. And, you know, we were fortunate that enough people in D.C., between November 2020 and January 2021, enough people were thinking about their own consequences and consequences for the institutions that they didn't follow in what I would call a coup attempt. Mark Meadows did. He made the other calculus and he needs to be punished so that the future chief of staff in the second Trump administration knows there are limits on what they can do.

Since Ginsburg brought it up, let's ponder a second Trump administration for a minute — and where those limits would come from.

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Peter Bergen: One of the things that I was struck by, you know, I grew up in the UK, I'm an American, but, obviously in the UK there's a sort of unwritten constitution, which is relatively powerful, but what I realized was there's actually a lot of unwritten norms in American politics… that most people followed those norms, but Trump did not.

Aziz Huq: That's right. So the United States has a written constitution, and that written constitution is contained in one place. In that way, it's unlike the United Kingdom, because you have this kind of disaggregated, dispersed, disorganized heap of legal texts that people sometimes call a constitution, there's a great deal more awareness of the importance of shared understandings, norms, and what I would call dispositions, which are tendencies to act in certain ways toward others. Now, the United States has all of those, or at least it had, all of those shared understandings, there were norms of civility, norms of respect for others. Remember the famous incident during a town hall, John McCain, while campaigning for the presidency was asked about Obama and asked about whether he was a loyal American.

ARCHIVAL Town Hall Attendee: I gotta ask you a question. I can't trust Obama. I have read about him... um, he's an Arab.

Aziz Huq: And he gives this very, clear, very eloquent answer about challenging people's policies, but not challenging people's bona fides.

ARCHIVAL John McCain: No ma'am, no ma'am, he's a, he's a, he's a decent family man, citizen that I just happen to have disagreements with on, on fundamental issues, and that's what this campaign is all about.

Aziz Huq: Very hard to imagine that being done by a presidential candidate at least on the Republican side right now.In the United States the fact of a written constitution sucks up all of the oxygen and the attention in the room and I think has drawn attention away from the importance of the norms, understandings, and dispositions that are necessary to make that constitution work.

Peter Bergen: And what were the norms you think that Trump ignored?

Aziz Huq: Uh, we, we don't have a week to do this, do we? [PETER LAUGHS] Uh, it's very hard to identify a norm that is important to democratic life that he did not transgress.

And norms really matter because when it comes to deciding whether you’re going to prosecute presidential misconduct or let it slide, the U.S. constitution doesn't really have much guidance on this issue. There's nothing written in there to prevent officeholders from kneecapping their political predecessors, in tit-for-tat fashion.

Tom Ginsburg: The constitution was drafted in 1787. There are many things that we used in 1787 that we don't use anymore, right? Writing letters with a feather pen and going to work on a horse and buggy, right? And yet we have this document which has endured all of this time, and we are stuck with it in my view, it's not like we can change it. But as you would predict from anything that's an antique, it doesn't necessarily function like it was originally supposed to and it doesn't function very well in our era. For many of these questions, the constitution just simply doesn't have any resources for us. And thus, we are dependent on the goodwill and the behavior and the equilibrium, really, among the political parties for how these various tools and offices are going to be used. I think the only way we get back to some kind of like… I don't want to say normal equilibrium, I don't know when normal was, but, a more productive equilibrium is if the parties realize that, just going after the other side is just not popular with voters. And I don't think it is popular with voters.

So suppose Trump is really being serious when he says stuff like this:

ARCHIVAL Donald Trump: ...Somebody wants to run against me, I call my attorney general, I say, “Listen, indict him”...

ARCHIVAL Donald Trump: This is third world country stuff. Arrest your opponent. And that means I could do that too.

What's to stop him from taking the country down this road of an-eye-for-an-eye prosecutions? Huq and Ginsburg say there is an unlikely hero of a healthy democracy...

Tom Ginsburg: Which is, you know, not emphasized by many others, but really important is what we call the bureaucratic rule of law.

You heard that right. Bureaucracy. He’s not talking about waiting in line to renew your driver’s license at the DMV. He’s talking about a new kind of authority, rational and also legal, that thinkers like Max Weber said emerged with the modern state, replacing older forms of authority like traditional kings and queens or charismatic strongmen.

Tom Ginsburg: Bureaucracy, of course, is an epithet. When you want to insult somebody, you're just a stupid bureaucrat following the rules. It kind of implies like you're, mindlessly following the law without paying attention to the spirit of it. But actually, if you think about it, bureaucracy is necessary for democratic rotation in office under modern conditions, there are two million federal employees and imagine that the incoming president could fire every one of them and hire his friends. That would be an enormous amount of patronage. And that's actually the situation in many countries around the world where there aren't civil service protections. That is, again, raising the stakes of democracy so high that you can't ever turn over power. And, in our country, of course, the incoming president can't fire civil servants.

He’s talking about all the career officials in places like the Department of Justice, state and local boards of elections — people who aren’t beholden to a particular party or president and are well-versed in the norms of how our democratic government works. Now, you might be thinking that one man’s heroic bureaucrat might be another man’s deep state saboteur. But the idea isn’t to think of them so much as individuals but as something more like an ecosystem. Huq has a better way to explain it.

Aziz Huq: So let me give you an analogy. So there's a German political thinker, came to America, came to the University of Chicago, called Hannah Arendt. And Arendt has a famous metaphor for democratic politics. She says, 'Look, democratic politics is, like, all of us coming into a room and sitting down at a table where there's a bunch of chairs, and talking through our problems. And we need to do that again and again and again, ‘cause we need to live together.' And Arendt points out, well look, if every time we had to sit down, we had to recreate the table from scratch, we had to build the chairs, assemble the chairs, put them into the right order. If we had to do that every time, we would never get anything done. We could not have a collective life unless we had the table and the chairs in the room that allow us to sit down and talk things through. Those table and chairs, which are necessary for democratic political life, are the boring bureaucratic institutions that run elections, that run the criminal justice system.

Tom Ginsburg: You need bureaucrats who are willing to count the votes as they come in without fear or favor. And, we take that for granted in the United States. But we saw in the last election how precious it is, and how delicate. We had people intimidating poll workers, yelling at them, “stop the steal,” showing up with guns outside. You need the bureaucratic rule of law.

This bureaucratic furniture could be put under a fair amount of strain in America’s next election. For one, there is a vocal faction of the Republican party that — if Trump is re-elected — aims to fire tens of thousands of federal workers and replace them with some Trump loyalists. And the country has entered a moment where it’s at least possible that a leading candidate could end up running for the presidency from inside a jail cell.

Tom Ginsburg: Perfectly legal in the United States. People have noted that Eugene Debs ran from jail. There was no chance Eugene Debs was going to win a U.S. election, but Donald Trump could be the first. If that happens and it's a federal jail, presumably there's some mechanism — this is totally, you know, uncharted territory — could he self pardon or, could the vice president take the oath and then self pardon? I don't know. Probably he would get out of a federal jail. But what about a state jail? That's raising some crazy questions.

Tom Ginsburg: So no one's an expert in stuff that's never happened. So all we can do is speculate. I go back to… a kind of pragmatic consideration in a country with a history of racist, political violence, it's pretty hard to control. I just would really fear in that kind of situation, that if he was not allowed to serve as president, we'd have a lot of violence that would result. But I actually don't think that's likely to happen. I think that if he ends up in jail, he's not going to win the presidential election. You know we like incumbents in this country anyway. So, it's all uncharted territory, but the fact is in our country, unlike many others, you can run for office from jail.

And it’s worth mentioning that political violence isn’t new in the United States. Massachusetts Senator Charles Sumner was nearly beaten to death on the floor of the U.S. Senate after he gave a speech opposing slavery in 1856.

The Civil War that followed was the most lethal conflict in U.S. history. America has seen deeper divisions and worse political violence than the Jan. 6th riot and still survived. Which is why the optimist, Californian Tom Ginsburg, finds hand-wringing about states seceding or a Trump-inspired civil war to be just silly.

Tom Ginsburg: That's the craziest thing I've ever heard. We're not having a civil war in this country. I think there's a lot of hysteria going on and I just, you know, trust in our ability to reinvent ourselves as we always have.

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And it’s this faith in this bureaucratic furniture inside democracy’s house — the people and practices making up the boring institutions that count votes or try cases or keep the peace — that makes Ginsberg think that the United States will come through the next election ok.

Tom Ginsburg: Rational legal authority, baby. It's the only thing that matters.

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If you’d like to learn more about the stories and issues in this episode, we recommend How to Save a Constitutional Democracy by Tom Ginsburg and Aziz Huq, which is for sale on Amazon.

We also recommend Aziz Huq’s book, The Collapse of Constitutional Remedies, which you can find on Audible.

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