Latest / The Ben Ferguson Podcast / Defending Democracy: Trump WILL Win at the Supreme Court-Here's How & Why

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Defending Democracy: Trump WILL Win at the Supreme Court-Here's How & Why · The Ben Ferguson Podcast

0:01
Speaker 1: Senator Colorado banned Donald Trump from the ballot. A bunch
0:04
Speaker 1: of other states decided they wanted to do the exact
0:07
Speaker 1: same thing, and now this is all going to the
0:09
Speaker 1: Supreme Court. We thought it was appropriate to spend some
0:12
Speaker 1: serious time on the podcast today talking about this issue.
0:16
Speaker 1: Why was Colorado chosen to be the case that would
0:20
Speaker 1: go to the Supreme Court over the other states that
0:23
Speaker 1: had also done the same thing, because Trump's team and
0:25
Speaker 1: they had options here, Why was it Colorado and what
0:28
Speaker 1: does this mean moving forward?
0:30
Speaker 2: Well, Colorado was really the only option. We have two decisions.
0:34
Speaker 2: We have Colorado and Maine. Colorado was a decision from
0:37
Speaker 2: the state Supreme Court. It was a decision that was
0:40
Speaker 2: four to three, and a decision from a state supreme
0:43
Speaker 2: court can be appealed to the US Supreme Court. What
0:48
Speaker 2: happened in Maine was it was a decision from the
0:50
Speaker 2: Secretary of State. So it was an individual It was
0:53
Speaker 2: not a court that decided it was the secretary of state.
0:56
Speaker 2: Secretary of State is not a lawyer. She is not
1:00
Speaker 2: an elected official by the people. She is elected by
1:03
Speaker 2: the state legislature.
1:04
Speaker 3: In Maine. She made a determination.
1:06
Speaker 2: The next step in Maine is for that to be
1:10
Speaker 2: challenged in Maine.
1:12
Speaker 3: Judicial court, in state court.
1:15
Speaker 2: Okay, so you can't appeal from the main Secretary of
1:20
Speaker 2: State to the US Supreme Court because the only option
1:22
Speaker 2: was in Colorado was the only option. Appeals to the
1:26
Speaker 2: Supreme Court as a general matter, lie either from state
1:30
Speaker 2: supreme courts or lie from federal courts of appeal. And
1:34
Speaker 2: so the way the courts work, you have a federal
1:37
Speaker 2: system and you have a state system. Typically both are
1:40
Speaker 2: set up with trial courts, intermediate appellate courts, and then
1:44
Speaker 2: the Supreme Court. And so in the state you have
1:48
Speaker 2: typically a trial court, intermediapellate court, the Supreme Court, and
1:50
Speaker 2: from the state supreme court you can appeal to the
1:53
Speaker 2: US Supreme Court, although you can only appeal a question
1:56
Speaker 2: of federal law. So Colorado can determine Colorado's state law
2:02
Speaker 2: the Supreme Court, and the US Supreme Court doesn't determine
2:05
Speaker 2: Colorado state law. But in this instance the question is
2:08
Speaker 2: overwhelmingly it is entirely one of federal law, namely what
2:13
Speaker 2: the Fourteenth Amendment to the Constitution means.
2:15
Speaker 1: So the Supreme Court to be clear, and this is
2:18
Speaker 1: where it's gotten complicated. When you go before the Supreme
2:21
Speaker 1: Court in this case with Colorado, the argument that's going
2:24
Speaker 1: to be made. Is it going to be about whether
2:26
Speaker 1: there was insurrection and he was in charge of that insurrection,
2:29
Speaker 1: therefore he should be disqualified with a fourteen amendment. Or
2:32
Speaker 1: is this about a state overstepping and saying we believe
2:37
Speaker 1: that he was a guy that was involved in insurrection,
2:39
Speaker 1: so therefore we can take him off the bout or
2:42
Speaker 1: is it really a combination of both.
2:44
Speaker 2: So it'll be both, and let me break down. Look unverdict.
2:48
Speaker 2: When the Colorado decision came down, when the main decision
2:51
Speaker 2: came down, we said on this podcast, I predicted the
2:54
Speaker 2: Supreme Court would do exactly what it's done, that the
2:57
Speaker 2: Supreme Court would take the case, and that they would
3:00
Speaker 2: take it quickly. That is what has happened. So they've
3:03
Speaker 2: taken it.
3:03
Speaker 3: Now.
3:04
Speaker 2: They've set the oral argument for February eighth, so that
3:08
Speaker 2: is exceptionally fast. Generally, when the Supreme Court takes a case,
3:12
Speaker 2: you have months to file briefs and the oral argument
3:15
Speaker 2: is six months down the road. In this instance, the
3:19
Speaker 2: oral argument is a month from now. The parties will
3:23
Speaker 2: file their briefs in the next couple of weeks. So
3:25
Speaker 2: they are furiously writing their briefs right now.
3:28
Speaker 1: And when you say the party is to be clear,
3:29
Speaker 1: that is the Colorado Attorney General and her staff is
3:33
Speaker 1: going to be filing on their side. And then who's
3:35
Speaker 1: going to be filing this is it Trump's personal legal
3:38
Speaker 1: team or is in the campaign.
3:39
Speaker 2: Out well, So the Colorado Republican Party has filed an appeal,
3:43
Speaker 2: Trump will certainly file, will participate in it. You will
3:47
Speaker 2: have other meeky friends of the court. And what I
3:52
Speaker 2: want to do for this podcast is two things. Want
3:54
Speaker 2: to tell you what I think the Court's going to
3:57
Speaker 2: do and why. But two then I want to just
3:59
Speaker 2: explain the details of the legal arguments that are playing out,
4:03
Speaker 2: because this is complicated, it's hard to understand, and it's
4:06
Speaker 2: important to understand. I believe the US Supreme Court is
4:11
Speaker 2: going to reverse the Colorado Supreme Court, and I think
4:14
Speaker 2: there is a very good chance that the U. S
4:18
Speaker 2: Supreme Court will do so unanimously. Really, I think if
4:22
Speaker 2: I were to put the odds of a unanimous decision,
4:24
Speaker 2: I'd say the odds of unanims decision are sixty to
4:27
Speaker 2: seventy percent.
4:29
Speaker 1: You say that, and there's gonna be what the listener,
4:31
Speaker 1: they are gonna be shocked. I'm one of them. And
4:33
Speaker 1: here's why I feel like I've lost some faith in
4:35
Speaker 1: the Supreme Court, specifically over Roe v. Wade and the
4:38
Speaker 1: leaking of that decision, and also the fact that clearly
4:42
Speaker 1: there had to be people that knew who leaked it,
4:45
Speaker 1: and we still haven't found out who the leaker is.
4:47
Speaker 1: There's no indication we ever are going to figure out
4:49
Speaker 1: who the leaker is, which is I think also shocking.
4:52
Speaker 1: So when you come back and you say nine to oh,
4:55
Speaker 1: tell me why you have that much faith.
4:57
Speaker 3: So I think a number of things.
4:58
Speaker 2: I think number one, the Chief Justice John Roberts is
5:01
Speaker 2: going to be deeply invested in wanting this to be unanimous,
5:06
Speaker 2: in not having the Supreme Court appear partisan. Every justice
5:10
Speaker 2: is going to be aware this is a decision that's
5:13
Speaker 2: going to be watched by the country and watched by
5:16
Speaker 2: the world, and every justice is aware of not wanting
5:20
Speaker 2: the Court to appear like a political or partisan body.
5:24
Speaker 2: John Roberts, whom I know very very well. As you know,
5:28
Speaker 2: I clerk for Chief Justice William Rehnquist. John Roberts clerk
5:31
Speaker 2: for Chief Justice Renquist as well. He's been a friend
5:34
Speaker 2: of mine for thirty years. He cares deeply about the
5:38
Speaker 2: institutional legacy of the Court, and he is going to
5:43
Speaker 2: be deeply motivated a unanimous decision, I think he will believe,
5:47
Speaker 2: and I think all of the justices will believe. Is
5:50
Speaker 2: the best for the Court and the best for the country.
5:53
Speaker 1: Is that because a precedent moving forward that ten years,
5:55
Speaker 1: twenty years from now, we could see this happen again,
5:58
Speaker 1: where a political party decides we're just going to try
6:00
Speaker 1: to throw a guy off the ballot.
6:02
Speaker 4: It could be a Democrat next time.
6:04
Speaker 2: Look, the precedent on this is terrible and what the
6:08
Speaker 2: Colorado Supreme Court did was lawless, and we'll walk through
6:12
Speaker 2: it that in a minute. But here's what I think
6:15
Speaker 2: will happen. So, by the way, to give you a
6:17
Speaker 2: sense of the scope of it, if the US Supreme
6:21
Speaker 2: Court affirmed the Colorado Supreme Court decision, Donald Trump would
6:27
Speaker 2: be struck from the ballot. And if that determination was made,
6:31
Speaker 2: it's not binding on the other states, but the other
6:34
Speaker 2: states within very short order, Trump would be removed from
6:37
Speaker 2: the ballot in all fifty states. So if the Supreme
6:40
Speaker 2: Court decided fifty.
6:41
Speaker 1: So not just Democrat states or there's a Democrat attorney
6:44
Speaker 1: general there. You're saying all over the country.
6:46
Speaker 2: The only ground on which the US Supreme Court could
6:51
Speaker 2: affirm the Colorado Supreme Court is to conclude that Trump
6:55
Speaker 2: is barred from running for office because of the Fourteenth Amendment,
6:59
Speaker 2: Section three the Constitution. If the Supreme Court concludes that,
7:03
Speaker 2: every state will remove them from the ballot, and you
7:05
Speaker 2: will have courts order every state to do that. So
7:08
Speaker 2: that would be a nationwide decision. Now, it would also
7:11
Speaker 2: be a decision that would be so profoundly anti democratic,
7:17
Speaker 2: and I think it would rip this country apart. And
7:21
Speaker 2: the Court doesn't want to do that. You know, there's
7:24
Speaker 2: a rich irony democrats. What they tell you, what they
7:30
Speaker 2: accuse their opponents of doing, almost inevitably, is what in
7:34
Speaker 2: fact they are doing. Every Democrat right now is beating
7:38
Speaker 2: their chests saying we must save democracy. Joe Biden just
7:41
Speaker 2: gave a ludicrously self righteous speech saying we must save democracy,
7:46
Speaker 2: by which he means elect democrats. And nothing saves democracy
7:50
Speaker 2: or defends democracy like throwing your opponent off the ballot,
7:54
Speaker 2: so to stop the voters from voting for him. Understand
7:58
Speaker 2: why the Democrats are doing this they're afraid the voters
8:01
Speaker 2: will vote for Donald Trump if he's on the ballot,
8:03
Speaker 2: and so they're trying to prevent democracy. I don't think
8:08
Speaker 2: the Supreme Court is going to have any interest in
8:11
Speaker 2: playing a part in preventing democracy, in stifling the right
8:16
Speaker 2: of the voters to decide. And here's how I actually
8:19
Speaker 2: think it will play out. I think John Roberts in particular,
8:23
Speaker 2: is going to go to Elena Kagan. Elena Kagan is
8:27
Speaker 2: the smartest of the liberal justices. She was the dean
8:31
Speaker 2: of the Harvard Law School, she was the United States
8:33
Speaker 2: Solicitor General. She is a very very smart, talented lawyer.
8:38
Speaker 2: And I think Roberts is going to try very hard
8:42
Speaker 2: to make the personal case each of the justices that
8:46
Speaker 2: the Court needs to be united. By the way, that's
8:49
Speaker 2: not unprecedent. If you look at Brown versus Board of Education,
8:52
Speaker 2: which was the case in nineteen fifty four that struck
8:56
Speaker 2: down segregated schools. That decision was unanimous. Earl Warren was
9:02
Speaker 2: the Chief Justice. He understood that that decision was a big,
9:06
Speaker 2: big deal. Segregated schools had been allowed under a decision
9:10
Speaker 2: called Plessy versus Ferguson, a terrible decision, and Brown overruled
9:15
Speaker 2: Plessy and Earl Warren thought it was critically important that
9:19
Speaker 2: the Court speak unanimously that there'll be no division on
9:22
Speaker 2: a Christian that would impact every American. I think this
9:28
Speaker 2: is of a similar magnitude, and given the political context,
9:32
Speaker 2: I think every justice will feel an urge to have
9:37
Speaker 2: the Court not appear to be a political branch.
9:40
Speaker 3: Now.
9:41
Speaker 1: You mentioned, by the way, in a previous verdict, that
9:44
Speaker 1: the justice don't necessarily talk a lot to each other,
9:47
Speaker 1: almost never.
9:48
Speaker 4: They operate as almost like independent law firms. As you
9:51
Speaker 4: described it.
9:52
Speaker 1: This seems different in this scenario where you're saying there
9:55
Speaker 1: will be almost in essence, like a lobbying for the
10:00
Speaker 1: sanctity of the court in essence and for the country, like, hey,
10:03
Speaker 1: we need to all get together on this one.
10:06
Speaker 4: This is different and.
10:07
Speaker 1: You believe that's probably how it's going to play. And
10:09
Speaker 1: that doesn't happen very often, correct.
10:11
Speaker 2: It happens very very rarely. In this instance, I think
10:16
Speaker 2: it was a no brainer the Court would take it.
10:18
Speaker 2: It didn't surprise me at all, and by the way
10:20
Speaker 2: it was going to be argued on February eighth, we
10:23
Speaker 2: will get a decision.
10:24
Speaker 3: I think by the middle of February.
10:25
Speaker 2: We'll have a decision within a week or two or three.
10:29
Speaker 1: Who decides at the Supreme Court to take a case
10:32
Speaker 1: quickly and walk us just through that?
10:34
Speaker 4: Does that have to be a lot of justices.
10:36
Speaker 2: So what was filed is what's called a petition for
10:40
Speaker 2: rid of cercherari. That is a request for the court
10:43
Speaker 2: to hear an appeal. The Supreme Court is unusual in
10:46
Speaker 2: that many courts of appeals, most courts of appeals, you
10:49
Speaker 2: have an appeal by right. In other words, if you
10:51
Speaker 2: file an appeal, the court has to take it. If
10:54
Speaker 2: you have a case in federal district court, you're convicted
10:56
Speaker 2: of a crime, or you have a civil lawsuit, you
10:58
Speaker 2: assue me and you lose, you can file an appeal
11:02
Speaker 2: as of right. And if you're in federal district court
11:05
Speaker 2: here you would appeal to the Fifth Circuit Court of
11:06
Speaker 2: Appeals and the Fifth Circuit will take that appeal.
11:10
Speaker 3: It has no choice.
11:11
Speaker 2: The Supreme Court has what's called a discretionary jurisdiction, which
11:15
Speaker 2: means it chooses which cases to take. In a typical year,
11:19
Speaker 2: they are about eight thousand wow. Cert petitions is what
11:22
Speaker 2: they're called petitions for sorcer or. Everyone calls them cert petitions.
11:26
Speaker 2: They're about eight thousand. The Court typically takes about eighty,
11:30
Speaker 2: so it takes about one percent of the appeals it
11:32
Speaker 2: says yes. It takes four justices to vote to grant cert.
11:40
Speaker 2: I believe this case was a no brainer. I think
11:42
Speaker 2: all nine of them agreed we needed to take it.
11:45
Speaker 2: I don't think they hesitated on, of course, whether or
11:50
Speaker 2: not one of the two major party nominees is excluded
11:55
Speaker 2: from the ballots and the voters are prevented from voting
12:00
Speaker 2: under the Constitution. It is difficult to imagine a more
12:03
Speaker 2: consequential question and a question that demands the Supreme Court
12:07
Speaker 2: get it. Look, I don't think the Court was eager
12:09
Speaker 2: to get into this issue at all. If Colorado hadn't decided.
12:12
Speaker 4: This, they went to have touched it.
12:13
Speaker 2: The Justices are not looking to opine on this, but
12:16
Speaker 2: once Colorado ruled, they had no choice, and they had
12:19
Speaker 2: no choice but to do it quickly.
12:21
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Speaker 1: details about credit costs and terms. What was the mentality
13:42
Speaker 1: of the court when you were part of the Bush
13:44
Speaker 1: team in Bush v. Gore when they took that pretty
13:47
Speaker 1: quickly as well, So that was that was really fast,
13:51
Speaker 1: seems a lot like this timeline. They weren't eager to
13:54
Speaker 1: get involved in that either, if I remember correctly, walk
13:58
Speaker 1: us through that comparison.
13:59
Speaker 2: Yeah, So Bush versus Gore, I was part of the
14:01
Speaker 2: legal team representing George W. Bush in the year two thousand.
14:06
Speaker 2: That entire legal proceeding took thirty six days, and I
14:09
Speaker 2: was down in Florida and Tallahassee as a baby lawyer.
14:13
Speaker 2: I was twenty nine years old, but part of the
14:15
Speaker 2: legal team, one of the most junior members of the
14:18
Speaker 2: legal team, but part of the legal team litigating in
14:21
Speaker 2: that particular case. We went to the US Supreme Court twice,
14:25
Speaker 2: and in those thirty six days, the Supreme Court heard
14:27
Speaker 2: two appeals. Those two appeals were briefed, they heard or arguments,
14:32
Speaker 2: and they issued decisions, and both of those played out
14:35
Speaker 2: within the thirty six days. So the court can move
14:38
Speaker 2: exceptionally quickly if there is an urgency to do so.
14:41
Speaker 2: It was interesting in Bush versus Gore there was a
14:45
Speaker 2: divide of opinion among the lawyers representing Bush as to
14:48
Speaker 2: whether the court would take the case really, and the divide,
14:51
Speaker 2: by and large was the divide between those who had
14:55
Speaker 2: clerked at the court and those who had not clerked
14:57
Speaker 2: at the court. Almost without exception those of us who
15:00
Speaker 2: had been law clerks at the Supreme Court believe the
15:03
Speaker 2: Court would take the case that even though in two
15:05
Speaker 2: thousand the Court was not eager to get in the
15:07
Speaker 2: presidential race, it required there was a responsibility for the
15:12
Speaker 2: Court to resolve it.
15:13
Speaker 3: I think that's exactly what they feel here now. Given that.
15:19
Speaker 2: If it's going to be a unanimous decision, and as
15:21
Speaker 2: I said, I think it is more likely than not
15:22
Speaker 2: that it is, then the Court is not going to
15:27
Speaker 2: rule I believe that there was not an insurrection, Like
15:32
Speaker 2: that's one ground you could reverse as say there was
15:34
Speaker 2: not an insurrection.
15:35
Speaker 3: Why is that going to be the case?
15:37
Speaker 2: Look, I don't think there was an insurrection as a
15:39
Speaker 2: matter of law, and we'll talk about that in a second.
15:41
Speaker 3: But I don't think the court will rule that.
15:43
Speaker 2: Why because I don't think Kagan or Soda Mayor or
15:46
Speaker 2: Kotanji Brown Jackson would rule there was not an insurrection.
15:51
Speaker 2: So if it's going to be unanimous, they're going to
15:53
Speaker 2: have to find a way to resolve it that is narrow,
15:57
Speaker 2: but that reverses it and brings everyone to go. And
16:01
Speaker 2: so here's the basis. I think they will resolve it.
16:04
Speaker 2: I think they will resolve whether or not there was
16:07
Speaker 2: an insurrection. I'm willing to bet right now there will
16:12
Speaker 2: be a sentence in the opinion that says, we express
16:16
Speaker 2: no opinion on whether or not an insurrection occurred on
16:19
Speaker 2: January sixth.
16:21
Speaker 1: So they're gonna say, that's not what we're here to do,
16:24
Speaker 1: that's not what we're deciding.
16:25
Speaker 4: We're not part of that debate.
16:27
Speaker 2: I think what they will say instead is, however, the
16:31
Speaker 2: determination of that matter cannot be made without evidence, without
16:39
Speaker 2: due process, without a judicial proceeding, and in particular the
16:43
Speaker 2: ground that I think the court will go to. So
16:46
Speaker 2: there's a federal statute. So here's what eighteen USC. Section
16:50
Speaker 2: two three eight three says. It's entitled rebellion or insurrection.
16:54
Speaker 2: Whoever insights, sets on foot, assists, or engages in any
16:58
Speaker 2: rebellion or insurrection against the authority of the United States
17:01
Speaker 2: or the laws thereof, or gives aid or comfort there too,
17:05
Speaker 2: shall be fined under this title or imprisoned not more
17:08
Speaker 2: than ten years, or both, and shall be incapable of
17:12
Speaker 2: holding any office under the United States. Now notice the
17:16
Speaker 2: penalty and capable of holding any office. This is a
17:18
Speaker 2: statute that is codifying the Section three of the fourteenth Amendment,
17:26
Speaker 2: and it is insurrection. Now, interestingly enough, Donald Trump, it seems,
17:31
Speaker 2: has been indicted all over the place by a bunch
17:34
Speaker 2: of very partisan, over zealous prosecutors who hate the man.
17:39
Speaker 2: And you know what, he hasn't been indicted for anywhere insurrection.
17:45
Speaker 2: Jack Smith, who is javert to Trump as Jean Valjean
17:52
Speaker 2: Jack Smith hates Trump and wants to get him no
17:55
Speaker 2: matter what, in prison for life senence. And Jack Smith
17:59
Speaker 2: is in decent with a very liberal judge. He's got
18:01
Speaker 2: a DC jurypool that is ninety four percent Democrat, he's
18:05
Speaker 2: got the most favorable environment in the world. And you
18:07
Speaker 2: know what he hasn't done in indicted Trump for insurrection.
18:11
Speaker 2: And the only reason he.
18:11
Speaker 1: Has to say so, the question is why why?
18:15
Speaker 2: Because there's no remote evidence that would prove that Trump
18:22
Speaker 2: had engaged in insurrection. Donald Trump sent some tweets and
18:26
Speaker 2: stood up and gave a speech in which he told.
18:28
Speaker 3: People be peaceable, be peaceful.
18:33
Speaker 2: There there, you cannot prove as a matter of law
18:36
Speaker 2: that telling people to be peaceful is engaged in insurrection.
18:40
Speaker 2: So understand, when Democrats go on TV and say it's
18:43
Speaker 2: an insurrection. It's an insurrection when when reporters go on
18:46
Speaker 2: TV and say that, they mean that as political rhetoric.
18:49
Speaker 2: Insurrection is a legal term, and there's a reason no
18:54
Speaker 2: one has charged him with it because you couldn't pass
18:56
Speaker 2: the laugh test. So what I think the Supreme Court
18:59
Speaker 2: would say is, if you want to bar Trump from
19:03
Speaker 2: being on the ballot, charge him and convict him with insurrection.
19:06
Speaker 2: Jack Smith brings an indictment, they get a conviction, that
19:09
Speaker 2: conviction is upheld on appeal.
19:11
Speaker 4: Then look, then that's a different argument. Right, he's been
19:15
Speaker 4: convicted of it.
19:16
Speaker 2: Then it's a slam dunk if Trump were convicted of insurrection,
19:21
Speaker 2: if anyone were convicted of insurrection, they would be barred
19:26
Speaker 2: from being on the ballot.
19:29
Speaker 1: When you look at Jack Smith, and I got to
19:30
Speaker 1: go back to this because you talk about these guys
19:33
Speaker 1: and all of the different things they've gone after Trump,
19:35
Speaker 1: and to remind people that the entire country, not one
19:39
Speaker 1: of these over zealous prosecutors has gone after Trump for insurrection.
19:43
Speaker 1: Do you think Jack Smith probably sent in room with
19:44
Speaker 1: a bunch of Democrats and said, absolutely.
19:47
Speaker 4: Is there any way we could get him?
19:49
Speaker 1: Is it possible if we were going to try the case,
19:51
Speaker 1: how would we try the case? And then every time
19:53
Speaker 1: they went back to Donald Trump's own words of him
19:55
Speaker 1: saying go peacefully, and the tweets of him saying go peacefully,
19:58
Speaker 1: have a peaceful day, and the fact that he also
20:01
Speaker 1: said he offered up the National Guard, which Democrats Pelosi
20:05
Speaker 1: said no to. So if you're trying to have an insurrection,
20:07
Speaker 1: would you try to do that as well?
20:09
Speaker 2: And understand looks Section three the Fourteenth Amendment was passed
20:12
Speaker 2: in the wake of the Civil War. It was designed
20:17
Speaker 2: to stop people who had fought for the Confederacy from
20:20
Speaker 2: serving in Congress, from serving an elected office, from serving
20:24
Speaker 2: in government. If you were so understand when they were
20:28
Speaker 2: writing insurrection, they were thinking about the Civil War now,
20:35
Speaker 2: And we could in a minute go into and we
20:38
Speaker 2: may even do an entire podcast, a separate podcast on
20:41
Speaker 2: some of the judicial precedent on a post civil war.
20:45
Speaker 2: But a potential response to what I just said that
20:49
Speaker 2: the court would say, if you want to bar Trump
20:51
Speaker 2: from the ballot, prosecute him and convict him of insurrection.
20:56
Speaker 2: A potential response was well, post Civil War, the Civil
20:59
Speaker 2: War officers who were banned, they were not always barre
21:04
Speaker 2: prosecuted for insurrection. That's true, but I will say this,
21:08
Speaker 2: and it varied, but there was zero dispute that an
21:14
Speaker 2: insurrection had occurred. The predicate. You want to know what
21:18
Speaker 2: an insurrection is, Well, the Civil War lasted four years
21:22
Speaker 2: and six hundred thousand Americans were killed. That's an insurrection. Yeah,
21:26
Speaker 2: Like they brought out cannons, they shot and killed each
21:29
Speaker 2: other and had a war for four years, and it's
21:31
Speaker 2: the bloodiest war in American history. That's what they were
21:34
Speaker 2: talking about when they said insurrection, not a riot where
21:40
Speaker 2: some individuals committed individual acts of violence for which they
21:43
Speaker 2: were prosecuted and are serving jail terms. That is like
21:48
Speaker 2: the analogy is to the Civil War, and it's why
21:51
Speaker 2: no prosecutor can can bring this case. All right, let
21:53
Speaker 2: me walk through some of the arguments that are at play.
21:57
Speaker 2: So here's what Trump argues to the Supreme Court in
22:00
Speaker 2: his cer petition. First, he argued that the Supreme Court
22:07
Speaker 2: took Congress's authority to resolve questions of presidential eligibility, that
22:12
Speaker 2: it is a political matter to determine rather than a
22:15
Speaker 2: legal question, whether he is eligible under the Fourteenth Amendment.
22:19
Speaker 2: And actually in making this argument, he mentions President Obama
22:23
Speaker 2: and disputes about whether he was eligible to be president.
22:25
Speaker 2: He mentions Senator McCain when he ran for president, disputes
22:28
Speaker 2: about whether he was eligible, and he mentions me, actually,
22:30
Speaker 2: and there were disputes. There were challenges when I was
22:33
Speaker 2: running for president. There were legal challenges that I was
22:37
Speaker 2: not a natural born citizen. I was, in fact a
22:41
Speaker 2: natural born citizen, because what the Constitution requires is that
22:44
Speaker 2: you mean natural born. I was a US citizen even
22:47
Speaker 2: though I was born in Canada. My mother was a
22:49
Speaker 2: US citizen at the time of my birth, and so
22:51
Speaker 2: I was a citizen by birth. The process of being
22:54
Speaker 2: born is what made me an American citizen. I was
22:56
Speaker 2: never naturalized. But there were a bunch of lawsuits that
22:59
Speaker 2: were five against me when I ran. We defeated them all,
23:03
Speaker 2: and the courts threw them out, and we defeated them all.
23:06
Speaker 2: And what Trump said is, look, if there's a dispute,
23:08
Speaker 2: that's ultimately a question for Congress to decide, not the court.
23:12
Speaker 2: So that's argument number one. That's a real argument. A
23:15
Speaker 2: second argument is that Section three does not reply to
23:20
Speaker 2: the office of the president. This is a real argument,
23:24
Speaker 2: but I'd be surprised if the Supreme Court agrees with
23:27
Speaker 2: this one. But let me give you what his basis is.
23:30
Speaker 2: Trump argues it based on three different grounds that if
23:34
Speaker 2: you look at the phrase officer of the United States,
23:39
Speaker 2: it appears in three constitutional provisions other than Section three
23:44
Speaker 2: the fourteenth Amendment. It appears in the appointments clause, which
23:49
Speaker 2: requires the President to appoint ambassador's, public ministers and consuls,
23:53
Speaker 2: justices of the Supreme Court, and all other officers of.
23:57
Speaker 3: The United States.
23:59
Speaker 2: And he points out, well, the president obviously can't appoint himself,
24:03
Speaker 2: so officers are something different than the president. Likewise, the
24:08
Speaker 2: commission's clause requires the President to commission all the officers
24:14
Speaker 2: of the United States. Again, the president doesn't commission himself.
24:18
Speaker 2: So the argument is officers of the United States are
24:21
Speaker 2: different from the president, which is a constitutional creation. And
24:26
Speaker 2: then also the impeachment clause, the clause that verdict started with.
24:32
Speaker 2: The impeachment clause says, quote, the President, vice President, and
24:38
Speaker 2: all civil officers of the United States shall be removed
24:41
Speaker 2: from office on impeachment for and conviction of treeson bribery,
24:45
Speaker 2: other high crimes and misdemeanors, and so His argument is
24:48
Speaker 2: if the president was an officer of the United States,
24:51
Speaker 2: there would be no need to specify the president, vice president,
24:55
Speaker 2: and all civil officers. So that's the argument. There's a
25:00
Speaker 2: textual matter. It's not a crazy argument, but I would
25:03
Speaker 2: be surprised if that persuades the court. The third argument
25:08
Speaker 2: he makes is that as president, he took a different
25:12
Speaker 2: oath than officers of the United States, and that demonstrates
25:17
Speaker 2: he's not an officer. In particular, Section three bars from
25:21
Speaker 2: office those who have taken an oath to quote support
25:25
Speaker 2: the Constitution. And the president's oath of office is specified
25:31
Speaker 2: in the text of the Constitution and it is not,
25:33
Speaker 2: in fact an oath to support the Constitution. It is
25:35
Speaker 2: an oath to quote, preserve, protect, and defend the Constitution.
25:42
Speaker 2: I'm not terribly persuaded by that argument. It is technically
25:45
Speaker 2: right that the word support is not there, but.
25:49
Speaker 1: That would be one of the weaker arguments that they
25:51
Speaker 1: would be making of their options.
25:53
Speaker 2: Yeah, I would be surprised if the court grounded it
25:58
Speaker 2: on supports different from preserve, protect, and defend.
26:02
Speaker 1: By the way, when you go in there, as you're
26:04
Speaker 1: laying out these arguments from his team in the oral arguments.
26:08
Speaker 1: Would you make all of these or do you choose
26:10
Speaker 1: the one you want to make that you think is
26:12
Speaker 1: the one that they're willing to probably side with the most.
26:15
Speaker 1: Do you pick your best or do you make all
26:17
Speaker 1: of these saying here are the reasons why we think
26:19
Speaker 1: this is wrong, and these are the different options.
26:22
Speaker 4: How does that work in the oral arguments?
26:24
Speaker 2: So it varies strategically. Typically, the way people will do
26:28
Speaker 2: it is they will make they'll make all the arguments
26:31
Speaker 2: they have reasonably available to them in the briefs.
26:33
Speaker 3: The briefs are written documents.
26:37
Speaker 2: They are typically in the US Supreme Court emerits brief
26:39
Speaker 2: is tip typically fifty pages long, and it's a booklet.
26:42
Speaker 2: It's a booklet that is oh about three fourths the
26:47
Speaker 2: size of a sheet of notebook paper. And so it's
26:49
Speaker 2: a bound little booklet fifty pages long. And in your
26:55
Speaker 2: written briefs, I would expect them to make all of
26:58
Speaker 2: these arguments in oral argument, A good oral advocate is
27:03
Speaker 2: going to prioritize it.
27:04
Speaker 4: Is that the same for good on the spring where
27:06
Speaker 4: it works?
27:07
Speaker 1: Those books that you're talking about, is that the same
27:11
Speaker 1: book that you have for every justice?
27:13
Speaker 4: Or can you taper them?
27:15
Speaker 3: None of different you file.
27:17
Speaker 2: Each side files uh the petitioner will file an opening
27:22
Speaker 2: brief that is fifty pages, the respondent will file a
27:26
Speaker 2: response brief that is fifty pages, and then the petitioner
27:29
Speaker 2: gets to file a reply. So there'll be three briefs
27:32
Speaker 2: filed by the parties, two by the petitioner, one by
27:35
Speaker 2: the respondent, and then amiki amik is Latin for amicus
27:40
Speaker 2: kurei which friend of the court. And there will be
27:43
Speaker 2: other parties that are a mek file briefs urging the
27:47
Speaker 2: court to do something.
27:49
Speaker 3: But an oral argument.
27:51
Speaker 2: A good oral advocate will prioritize the best arguments. And
27:56
Speaker 2: one of the things what really differentiates the best oral
28:00
Speaker 2: advocates from ones that are merely okay are their ability
28:06
Speaker 2: to read the court and pivot. So what I argued
28:09
Speaker 2: nine cases at the court, what I very much tried
28:12
Speaker 2: to do is watch and read the justices, and if
28:16
Speaker 2: there was an argument that I was making, I would
28:18
Speaker 2: have thought through what are my best arguments, and so
28:20
Speaker 2: I'd come in with a pretty clear idea, all right,
28:23
Speaker 2: here's the ground on which I think I can win
28:25
Speaker 2: for my client. But in the course of the questioning,
28:28
Speaker 2: if I see an opening for a justice whose vote
28:31
Speaker 2: I need to get, and maybe I think arguments one
28:34
Speaker 2: and two are really good and one justice likes argument three.
28:38
Speaker 2: A good oral advocate will pivot based on where the
28:43
Speaker 2: justices are and read the justices. And by the way
28:46
Speaker 2: I would expect, because I believe John Roberts passionately wants
28:52
Speaker 2: this to be unanimous, I would advise Trump's attorney to
28:56
Speaker 2: listen to John Roberts very carefully. So before John Roberts
29:00
Speaker 2: was Chief Justice, he was a Supreme Court advocate, and
29:05
Speaker 2: he was I think the finest Supreme Court advocate of
29:08
Speaker 2: his generation.
29:08
Speaker 4: When you say advocate, what does that mean?
29:10
Speaker 3: Lawyer?
29:10
Speaker 1: He argued in front of the Spring Court he was
29:12
Speaker 1: if if you wanted to go to the Supreme Court,
29:14
Speaker 1: have a good chance of winning, this is a guy
29:17
Speaker 1: you'd want to be making the arguments in your behalf.
29:18
Speaker 4: That's your definition of an advocate.
29:20
Speaker 3: So John Roberts was.
29:21
Speaker 2: He was the Deputy Solicitor General, the principal deputy Solicitor
29:25
Speaker 2: General under George Herbert Walker Bush so Bush forty one,
29:29
Speaker 2: the first Bush. He was Ken Starr's deputy. So Ken
29:33
Speaker 2: was the solicitor General. John Roberts was the deputy Solicitor
29:36
Speaker 2: General Principal Deputy. And from there he went to Hogan
29:40
Speaker 2: and Hartston, which is a DC law firm, and he
29:42
Speaker 2: led their Supreme Court practice. And in Bush versus Gore,
29:45
Speaker 2: John was part of our legal team. I recruited John.
29:47
Speaker 2: I called John on the phone from Tallahassee and said, John,
29:51
Speaker 2: we need you down here, and he flew down and
29:53
Speaker 2: joined our legal team. And so Bush versus Gore. I
29:56
Speaker 2: litigated it alongside John, worked on the briefs with him.
30:00
Speaker 2: Ted Olsen did the oral arguments, but John was part
30:03
Speaker 2: of the mooting team that was asking Ted the questions
30:07
Speaker 2: and preparing Ted for the arguments. When I was clerking
30:10
Speaker 2: for Chief Justice Renquist, my co clerks and I we
30:14
Speaker 2: asked the Chief We said, all right, you see lots
30:16
Speaker 2: of lawyers, who's the best Supreme Court advocate in the country?
30:21
Speaker 2: And Rehnquist laughed and he said, you know, I think
30:23
Speaker 2: I could get a majority of my colleagues to say
30:26
Speaker 2: John Roberts is the best Supreme Court advocate alive.
30:28
Speaker 4: Wow.
30:29
Speaker 3: And I agree with that.
30:29
Speaker 2: I've seen John argue multiple cases, and I think it
30:32
Speaker 2: was hands down like he was just when I argued cases.
30:37
Speaker 2: I tried to emulate John Roberts' argument style because he
30:41
Speaker 2: was so good. And so when I was arguing cases, Now,
30:45
Speaker 2: look when I started arguing cases when Renquist was still chief,
30:48
Speaker 2: and then I argued a number of cases with Roberts's
30:51
Speaker 2: Chief And I'll tell you what I did when I
30:53
Speaker 2: was arguing with Roberts's chief is I'm looking at the
30:57
Speaker 2: best Supreme Court advocate alive who have to be sitting
31:00
Speaker 2: in the center seat. And part of what made him
31:03
Speaker 2: so good is he was more skilled than anyone else
31:06
Speaker 2: at reading the other justices and the swing justice in particular,
31:09
Speaker 2: back when it was Kennedy and O'Connor who were the
31:12
Speaker 2: swing justices, John Roberts was excellent at it. So in
31:15
Speaker 2: the argument, I would pay very close attention to Chief
31:20
Speaker 2: Justice Roberts because if he laid out an argument, he's
31:24
Speaker 2: telling you, I think this is the theory that gets
31:28
Speaker 2: Kennedy and O'Connor, and so I would pivot very much.
31:31
Speaker 2: And my advice for Trump's lawyer is pay really close
31:36
Speaker 2: attention to what Roberts is saying, because he's not just
31:39
Speaker 2: asking for himself, he's asking on the theory he thinks
31:43
Speaker 2: is most likely to unify the.
31:45
Speaker 1: Court and get you to that nine zero unanimous decision. Yeah,
31:48
Speaker 1: how long are they going to have to argue this?
31:50
Speaker 1: I mean when you talk about oral arguments, is it
31:53
Speaker 1: is it ours?
31:54
Speaker 4: Is it ninety minutes? What are we talking about?
31:55
Speaker 2: So normally an argument is an hour. So normally each
31:58
Speaker 2: side has thirty minutes. They can extend it. They might
32:01
Speaker 2: extend it in this instance. I don't know, but normally
32:04
Speaker 2: an argument is an hour. And the bulk of the argument,
32:07
Speaker 2: by the way, is questioning from the justices. So you
32:10
Speaker 2: get up and the justices are asking you questions, and
32:13
Speaker 2: that it's a back and forth. It's not a mile.
32:17
Speaker 2: Is a statement there is? There didn't used to be.
32:21
Speaker 2: So the old way they did Supreme Court arguments was
32:25
Speaker 2: you would start off, you'd stand up and you'd say,
32:27
Speaker 2: mister Chief Justice, and may it please the court? And
32:29
Speaker 2: every argument begins with that, and you would sometimes get
32:36
Speaker 2: less than a sentence into your argument and a justice
32:40
Speaker 2: would jump in and pepper you with questions and what
32:43
Speaker 2: made it invigoratings? You'd have a question here, a question here,
32:45
Speaker 2: question here, and it was just non stop, and you
32:49
Speaker 2: had to be quick and fast and anticipate justices who
32:53
Speaker 2: disagreed with your position. They're trying to ask you questions
32:55
Speaker 2: to expose the weakness of your case, and you had
32:58
Speaker 2: to anticipate it. They have post COVID, they regimented it now,
33:04
Speaker 2: and I really don't like how they do it now.
33:06
Speaker 2: But they now have a period of questioning from each justice,
33:10
Speaker 2: and so it's a little it's not the wild face.
33:13
Speaker 1: It's almost like Congress, where you have five minutes or
33:15
Speaker 1: you have three minutes, and then you go in this order.
33:17
Speaker 1: Whereas before it could be a conservative just as to
33:20
Speaker 1: your question, followed up by a liberal justice to your question,
33:22
Speaker 1: followed up by another justice asking your question.
33:24
Speaker 4: It was it was control chaos.
33:27
Speaker 3: It was, yes.
33:28
Speaker 2: But it is more regimented now. But I would say
33:32
Speaker 2: I would expect the chief justices questions to lay out
33:36
Speaker 2: in the questions what he think thinks is the best
33:39
Speaker 2: theory to bring the court together. All right, let me
33:41
Speaker 2: give you the rest of Trump's arguments. Fourth argument he
33:44
Speaker 2: makes is that Trump did not participate in an insurrection,
33:48
Speaker 2: because an insurrection, as understood at the time of passage
33:51
Speaker 2: of the Fourteenth Amendment, means the taking up of arms
33:54
Speaker 2: and waging war upon the United States. Now, I think
33:58
Speaker 2: that's absolutely correct. I think it's ludicrous to say that
34:01
Speaker 2: Trump engaged in an insurrection based on the facts. I
34:04
Speaker 2: also do not believe the Supreme Court will conclude that
34:08
Speaker 2: because you can't get nine justices for that, and I
34:11
Speaker 2: think they will want unanimity, and so they'll say, look,
34:14
Speaker 2: my guess is we might get a concurrence from one
34:18
Speaker 2: of the more conservative justices saying this clearly was not
34:21
Speaker 2: an insurrection, but we might not. And by the way, look,
34:26
Speaker 2: I said that there's a sixty to seventy percent chance
34:28
Speaker 2: of it being unanimous. That means there's a forty to
34:32
Speaker 2: thirty to forty percent chance that the liberal justices just
34:36
Speaker 2: hate Trump so much they can't bring themselves to do it.
34:38
Speaker 4: And what would that decision look like.
34:40
Speaker 1: I mean, would it be one or two that say, hey,
34:42
Speaker 1: just for the principle and said nine, we're going to
34:43
Speaker 1: go seven to here, or even go sixty three.
34:47
Speaker 3: Look, sixty three would be heartbreaking.
34:51
Speaker 2: It would do real day in this country to the
34:53
Speaker 2: Court and to the country if it just broke on
34:56
Speaker 2: partisan lines. If the three liberal justices dissented and the
35:01
Speaker 2: six more conservative justices were in the majority, I think
35:04
Speaker 2: that would be terrible for the court, and I really
35:09
Speaker 2: hope it's not so. The fifth argument that Trump made
35:16
Speaker 2: is that the Elector's Clause requires states to appoint presidential
35:21
Speaker 2: electures quote, in such matter as the legislature thereof may direct.
35:26
Speaker 2: In other words, the courts can't intervene in that. The
35:29
Speaker 2: sixth argument is that Section three cannot be used to
35:35
Speaker 2: deny a candidate access to the ballot. It can only
35:39
Speaker 2: be used instead to prevent someone from holding office. So
35:45
Speaker 2: all of those are arguments, as I said, and you
35:50
Speaker 2: know it's and it's horse. By the way, the argument
35:54
Speaker 2: that I think will will fly is the argument that
36:01
Speaker 2: it was not adequately determined that Trump had participated in insurrection,
36:08
Speaker 2: not that there wasn't an insurrection, but that the means
36:12
Speaker 2: of ascertaining that.
36:14
Speaker 1: When that goes back to Jack Smith and what you're
36:16
Speaker 1: talking about, he was never charged, much less convicted, and
36:19
Speaker 1: it didn't work its way through the court system. And
36:22
Speaker 1: so if you believe that Donald Trump in fact was
36:25
Speaker 1: a part of an insurrection, then charge him with it,
36:27
Speaker 1: get him convicted of it, then you have that different
36:29
Speaker 1: argument goes back to what you were saying at the
36:31
Speaker 1: very beginning.
36:32
Speaker 2: Yes, and I will say look, one of the questions
36:36
Speaker 2: that will be front and center litigated is whether Section
36:40
Speaker 2: three is self executing. Self executing means a provision of
36:44
Speaker 2: the Constitution that has force of law, that doesn't need
36:48
Speaker 2: Congress to pass legislation to enforce it, and that will
36:52
Speaker 2: be actively disputed. And in the Colorado Supreme Court, one
37:00
Speaker 2: of the justices, Justice Carlos Simour, dissented on this point.
37:05
Speaker 2: And what he said is that the majority opinion of
37:07
Speaker 2: Colorado stripped President Trump of due process of the due
37:11
Speaker 2: process of law, and he says Section three didn't specify
37:15
Speaker 2: the procedures that have to be followed to be determined
37:18
Speaker 2: whether someone is engaged insurrection. All the Democrats is absurd.
37:22
Speaker 2: It's insurrection. It's insurrection, but that hasn't been determined as
37:26
Speaker 2: a legal matter, and so Justice Samour concluded the Section
37:33
Speaker 2: three is not self executing and requires legislation for enforcement.
37:37
Speaker 2: And he argued that the lower courts proceeding in Colorado
37:44
Speaker 2: lacked basic discovery, lacked the ability to subpoena documents, lacked
37:48
Speaker 2: the ability to compel witnesses, lacked any time frame to
37:52
Speaker 2: investigate or developed defenses, and lacked the opportunity for a
37:56
Speaker 2: fair trial. And he pointed out that in his view,
38:04
Speaker 2: Section three cannot be self executing because it doesn't provide
38:09
Speaker 2: any procedural guides. For example, Section three the Fourteenth Amendment
38:13
Speaker 2: is completely silent on whether a jury has to be
38:16
Speaker 2: impaneled or not. Can a judge decide it? Or does
38:18
Speaker 2: it have to be a jury your peer as well?
38:20
Speaker 2: Section three doesn't say it. What's the burden of proof?
38:24
Speaker 2: Is it beyond a reasonable doubt? Is clear and convincing evidence?
38:28
Speaker 2: Is it simply a preponderance of the evidence. Those are
38:30
Speaker 2: very different burdens of proof. Constitution is silence on that.
38:34
Speaker 2: What's the standard of review, what's the standard of discovery,
38:37
Speaker 2: what's the standard of evidence? Is it a civil determination
38:39
Speaker 2: or criminal determination? None of that is there. And so
38:44
Speaker 2: what he argues is that Congress could pass legislation to
38:49
Speaker 2: adjudicate that.
38:52
Speaker 3: I'm not entirely persuaded on that.
38:54
Speaker 2: What I would say is Congress has passed legislation when
38:57
Speaker 2: it's set up a criminal statute for insurrection, that there
39:00
Speaker 2: is a mechanism and it is a criminal trial.
39:04
Speaker 4: And charge him and charge him. And so you go
39:07
Speaker 4: back to the very beginning of what you said.
39:09
Speaker 1: No one has had the kons to charge them because
39:12
Speaker 1: they know they would lose.
39:13
Speaker 2: You could not prove the case in court, which is
39:17
Speaker 2: why instead you have partisan judges or a partisan Secretary
39:20
Speaker 2: of State just asserting it because they believe it is
39:24
Speaker 2: a political matter. Now, on our next podcast, what I
39:28
Speaker 2: want to walk into and go into is there is
39:31
Speaker 2: some history and some Supreme Court history on the Fourteenth
39:36
Speaker 2: Amendment in section three right after the Civil War and
39:39
Speaker 2: Jefferson Davis in particular. So I'm going to give a
39:42
Speaker 2: tease for our next podcast. I'm going to walk through
39:45
Speaker 2: what happened with Jefferson Davis under the Fourteenth Amendment Section three.
39:50
Speaker 2: But let's be clear, Jefferson Davis, by any measure, engaged
39:55
Speaker 2: in dramatically different conduct leading the Confederacy in way aging
40:00
Speaker 2: war with the United States for four years is very
40:03
Speaker 2: different from giving a speech telling people to be peaceful
40:07
Speaker 2: and so. But there is complicated precedent post Civil War.
40:13
Speaker 2: In the next podcast will dive into that.
40:15
Speaker 1: It's going to be very fun. This is why I
40:17
Speaker 1: love doing this show. I also will get your political predictions.
40:20
Speaker 1: I do want to end with one last thing, just
40:23
Speaker 1: so people have that timeline you mentioned earlier. Supreme Court's
40:26
Speaker 1: going to hear this. When and when do you think
40:28
Speaker 1: we'll have a decision from the Supreme Court.
40:30
Speaker 2: February eighth is when they hear the oral argument. I
40:33
Speaker 2: think we will get a decision quickly. I think it's
40:36
Speaker 2: possible it could be within days. I think it will
40:40
Speaker 2: be at the very latest by March fifth, which is
40:43
Speaker 2: when the Colorado primary is. And my guess is it'll
40:47
Speaker 2: be a week or two. That's just it'll be as
40:49
Speaker 2: quick as they can write the opinions. But I think
40:51
Speaker 2: they will feel an urge to move quickly.
40:55
Speaker 1: It's going to be incredible, that's phenomenal. We're going to
40:57
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41:00
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Speaker 1: It's a new year, and we thank you guys for
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Speaker 1: spending time with us. Make sure you sh this podcast
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43:02
Speaker 1: on video for many of you may be listening audio only.
43:05
Speaker 1: You can grab it on YouTube. You can grab it
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43:14
Speaker 1: of us here, and we'll see you back here in
43:16
Speaker 1: a couple of days for basically part two of what's
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Speaker 1: gonna unfold here with the Supreme Court.
43:21
Speaker 4: We'll see you then,