0:01

Sergeant and Mrs. Smith, you're going to love

0:04

this house. Is that a tub in the kitchen? Is that a tub

0:06

in the kitchen? There's no

0:08

field manual for finding the right home.

0:10

But when you do, USAA Homeowners Insurance

0:12

can help protect it the right way.

0:14

Restrictions apply. Say

0:21

for the sake of argument that you

0:23

engaged in insurrection. We fight like hell.

0:27

Could you then run for president again? The

0:29

state of Colorado says no, at

0:31

least not on our ballot. By

0:33

engaging in insurrection against the Constitution,

0:36

President Trump disqualified himself from public

0:38

office. Now the US Supreme Court

0:40

will decide. We'll

0:43

hear argument this morning in case 23-7-19, Trump vs. Anderson. Tonight,

0:48

Donald Trump's battle to remain on the ballot

0:50

for the 2024 presidential election. For

0:53

an insurrection, there needs to be an organized, concerted

0:55

effort to overthrow the government of the United

0:57

States through violence. So the point is that

1:00

a chaotic effort to overthrow the

1:02

government is not an insurrection? The

1:04

Colorado case, it's national implications. The

1:06

question that you have to confront

1:08

is why a single state should decide who

1:10

gets to be president of the United States.

1:13

And the damned if you do, damned if

1:15

you don't, predictions of chaos either way.

1:17

Members of this court have disagreed

1:19

about that. I'm asking you. Tonight,

1:22

Jason Murray is here live,

1:24

the lawyer who argued today's case

1:27

for Colorado voters. Joy

1:29

Reid, Chris Hayes, Lawrence O'Donnell, Ari Melber,

1:31

Alex Wagner, Stephanie Rule, all

1:34

here for MSNBC's special coverage

1:36

of the Supreme Court

1:38

arguments on the disqualification

1:41

of Donald Trump. Welcome

1:46

to our primetime recap of the historic

1:48

proceedings today at the United States Supreme Court.

1:51

I'm Rachel Maddow here at MSNBC Home

1:53

Base, along with my beloved colleagues, Lawrence

1:55

O'Donnell and Joy Reid and Ari Melber

1:57

and Chris Hayes. Happy to have you

1:59

all here. No cameras are

2:01

allowed in federal courtrooms, including the United

2:03

States Supreme Court. But today, for the

2:05

arguments about whether former President Trump should

2:07

be disqualified from office for having

2:09

engaged in an insurrection against the

2:11

U.S. government, the justices did allow

2:13

for the sound of the proceedings,

2:16

the audio, to be live streamed.

2:18

Here on MSNBC, we carried the audio

2:20

of those oral arguments live and in

2:22

full. That was starting just after 10

2:24

a.m. Eastern time. But

2:26

we also know that most people have lives and

2:29

jobs and school and other responsibilities that might

2:31

make it hard to take like two hours

2:33

out of a Thursday to stare at an

2:35

audio speaker for hours trying to figure out

2:37

if that was Gorsuch or Alito yelling

2:39

at that poor lawyer. So because

2:41

of that, we are here tonight to recap what

2:44

happened in prime time. In

2:46

the 1970s, Watergate hearings were also

2:48

broadcast live during the workday, recognizing

2:50

how consequential, how important those hearings

2:53

were. News networks during

2:55

that time started recapping each

2:57

day's Watergate hearings at night on

2:59

TV in prime time. So no one would

3:02

miss out on that incredibly important history in

3:04

the making. We then

3:06

did the same during the daytime hearings

3:08

of the January 6th investigation in Congress

3:10

in 2022. We know

3:12

from what we have heard from you, our

3:14

beloved viewers, that that was valuable. That was

3:16

a useful thing. And

3:18

so here we are together again

3:20

tonight with basically the same

3:22

approach. The

3:25

United States Supreme Court is now considering whether

3:27

the leading candidate for the Republican presidential nomination

3:29

should be banned from running again. Or

3:33

potentially, might it be

3:35

okay to allow him to run again, to allow

3:38

him to be on the ballot, to

3:40

allow him to compete and potentially even

3:42

win the election, whereupon only then would

3:44

he be prohibited from actually taking up

3:46

the job? Now,

3:49

why would you allow someone to run for an

3:52

office if they are ineligible to hold that office?

3:54

I don't know. But for the

3:56

non-lawyers among us, I think we

3:58

can all take comfort in the future. fact that that

4:01

idea sounded just as cockamamie and

4:03

nuts today at the United

4:05

States Supreme Court as it would if you

4:07

tried to explain it to somebody on a street corner. I

4:11

think it would create a number of really

4:13

difficult issues if the court

4:15

says there's no procedure for determining

4:17

President Trump's eligibility until after the

4:19

election. And then what happens

4:21

when members of Congress on January 6th, when

4:24

they count the electoral votes, say we're not

4:26

going to count electoral votes cast for President

4:28

Trump because he's disqualified, that is kind of

4:30

a disenfranchisement and constitutional crisis in the making.

4:33

And it's all the more reason to address

4:35

those issues now in a judicial process on

4:37

a full evidentiary record so that everybody can

4:40

have certainty on those issues before they go to the polls.

4:42

If we think that the states

4:44

can't enforce this provision for whatever

4:47

reason in this context, in the

4:49

presidential context, what happens

4:51

next in this case? I

4:54

mean, is it done? If

4:57

this court concludes that Colorado did not

4:59

have the authority to exclude President Trump

5:02

from the presidential ballot on procedural grounds,

5:04

I think this case would be done,

5:06

but I think it could come

5:08

back with a vengeance because ultimately members

5:11

of Congress may have to make the

5:13

determination after a presidential election

5:15

if President Trump wins about whether or

5:17

not he's disqualified from office and whether

5:19

to count votes cast for him. If

5:23

he might be ineligible to hold

5:25

office in the United States, but

5:27

states aren't allowed to keep him

5:29

off the ballot, then

5:32

how does the Constitution's ban on

5:34

insurrectionists holding office get enforced? And

5:37

just think about it logically, right? If states can't

5:40

enforce it by keeping people off the ballot before

5:42

the election, then Congress would

5:44

have to enforce the ban after

5:46

the election, which would mean Congress would have

5:48

to decide after the election,

5:51

but before inauguration on, say,

5:53

January 6th, 2025, they would

5:55

have to decide then

5:57

and there whether they're going to count

5:59

electoral votes. for Trump or not, based

6:02

on whether or not Congress believes at

6:04

that point that Trump is eligible or

6:06

ineligible for office, depending on whether in

6:09

their infinite wisdom Congress thinks he engaged

6:11

in an insurrection the last time around.

6:14

Congress will just work it out in

6:16

Congress on the spot on January

6:19

6th itself. What

6:21

could possibly go wrong? You

6:24

just heard Jason Murray there who did most

6:26

of the arguing today for the plaintiffs who

6:28

successfully sued in Colorado to keep Trump off

6:30

the ballot. We're going to be speaking live with Jason

6:32

Murray in just a few moments here tonight. But

6:36

that same point about how strange it would be

6:38

to do what Trump's lawyers propose,

6:40

to not start to decide whether Trump

6:43

is eligible to be president until after

6:45

the election, until after he has potentially

6:47

been elected president, that same point was

6:49

also made a slightly different way by

6:52

the second lawyer, by the Colorado

6:54

Solicitor General, who today also

6:56

defended Colorado taking Trump off

6:58

the ballot. Petitioner

7:01

contends that Colorado must put him on

7:03

the ballot because of the possibility there would

7:05

be a supermajority act of Congress to

7:07

remove his legal disability. Under

7:10

this theory, Colorado and every other state

7:12

would have to indulge this possibility, not

7:15

just for the primary, but through the general

7:17

election and up to the moment that an ineligible

7:19

candidate was sworn into office. Being

7:22

in the Constitution strips the states of their power

7:24

to direct presidential elections in this way. In

7:27

other words, do not make

7:29

us do this. In other words,

7:31

dear justices, rule that he's eligible for office

7:33

or rule that he's ineligible for office, but

7:36

do not force a situation in which

7:38

he must be allowed to run, but

7:41

he might not be allowed to serve

7:43

if he's elected. I

7:46

mean, if you thought last January 6 was bad, just

7:48

wait to see what you'd unleash for the next one

7:50

if we followed this course. Here's

7:53

Chief Justice John Roberts today. Counsel,

7:58

what if somebody came in to... with Secretary

8:01

of State's office and said, I

8:04

took the oath specified in Section 3, I

8:08

participated in an insurrection, and

8:12

I want to be on the ballot. Does

8:15

the Secretary of State have the authority

8:17

in that situation to say no, you're

8:19

disqualified? No, the Secretary of State could

8:21

not do that consistent with term limits,

8:23

because even if the candidate is an

8:25

admitted insurrectionist, Section 3 still

8:27

allows the candidate to run for office

8:29

and even win elections to office, and

8:31

then see whether Congress lists that disability

8:33

after the election. Well, even though it's

8:35

pretty unlikely, or at least would be

8:37

difficult for an individual who

8:39

says, you know, I

8:42

am an insurrectionist and I had taken

8:44

the oath, that would require

8:46

two thirds of votes in Congress, right?

8:48

Correct. Well, it's a pretty unlikely

8:51

scenario. Yeah, it's a pretty unlikely

8:54

scenario. So

8:56

that's point one from today's Supreme Court

8:58

arguments. The proposed remedy here from the

9:00

Trump side, which Congress has to

9:03

enforce the ban on an

9:05

insurrectionist serving an office, that that ban

9:07

can only be enforced after

9:09

the election, that Trump has to be

9:11

allowed to run even though he might

9:13

not be allowed to actually serve if

9:15

he wins, the practicalities of that, what that

9:17

might mean for the country, those

9:20

implications that are both bizarre and daunting, as

9:22

described by lawyers in the case today, I think

9:25

that's point number one. Now

9:27

let's talk about a second fundamental point that

9:29

didn't necessarily go as expected today at the

9:31

court. It's the very

9:34

basic question of whether or not former

9:36

president Trump did engage in

9:38

an insurrection. Everybody

9:40

knew this was gonna be something that was gonna

9:42

have to come up today, but there was less

9:44

discussion on this point today than many observers expected.

9:46

What there was was quite punchy though. Let's

9:49

start with Justice Katonci Brown Jackson and

9:51

Jonathan Mitchell, who's the lawyer who today

9:53

argued for former president Trump. The

9:58

Colorado Supreme Court concluded. that

10:00

the violent attempts of the petitioner

10:02

supporters in this case

10:05

to halt the count on

10:07

January 6th qualified as an insurrection,

10:10

as defined by Section 3. And

10:13

I read your opening brief to accept that

10:16

those events counted as an insurrection, but

10:19

then your reply seemed to suggest that they were

10:21

not. So what is your position?

10:24

We never accepted or conceded in our opening

10:26

brief that this was an insurrection. What

10:28

we said in our opening brief was President Trump did

10:31

not engage in any act that can plausibly

10:33

be characterized as an insurrection. All right, so

10:35

why would it not be an insurrection? What

10:37

is your argument that it's not? Your reply

10:39

brief says that it wasn't because I think

10:41

you say it did not

10:44

involve an organized attempt to overthrow the government.

10:46

So that's one of many reasons, but for

10:48

an insurrection, there needs to be an organized

10:50

concerted effort to overthrow the government of the

10:52

United States through violence. And this

10:55

riot- So the point is that a chaotic effort

10:57

to overthrow the government is not an insurrection? We

10:59

didn't concede that it's an effort to overthrow the

11:01

government either, Justice Jackson. None of these

11:03

criteria were met. This was a riot. It was

11:06

not an insurrection. The events were shameful, criminal, violent,

11:08

all of those things, but did not qualify as

11:10

insurrection as that term is used in Section 3.

11:13

Thank you. Because, thanks. Thanks.

11:15

It was, if it

11:17

was chaotic, it wasn't

11:19

an insurrection. Like if, the way

11:21

you can tell something's an insurrection is because they

11:23

march in lines. That's

11:25

part of the, what's a little riot

11:27

got to do with anything? Justice

11:30

Brett Kavanaugh elicited some

11:32

of the strongest pushback on this point, this

11:34

point of whether this was an insurrection and

11:36

the implications of that. He elicited some of

11:39

the strongest pushback on that today from

11:41

Jason Murray, one of the lawyers for the

11:44

Colorado voters. In

11:47

trying to figure out what Section

11:49

3 means and to

11:51

the extent it's elusive language or vague

11:53

language, what about the idea that we

11:56

should think about democracy, think

11:58

about the right of the... people to elect

12:02

candidates of their choice of

12:04

letting the people decide, because

12:06

your position has the effect

12:09

of disenfranchising voters

12:11

to a significant degree. What about

12:13

the background principle, if you agree,

12:15

of democracy? I'd like to make

12:17

three points on that, Justice Kavanaugh.

12:19

The first is that constitutional safeguards

12:21

are for the purpose of safeguarding

12:23

our democracy, not just for the

12:25

next election cycle, but for generations

12:27

to come. Second, Section

12:30

3 is designed to protect our

12:32

democracy in that very way. The

12:34

framers of Section 3 knew from

12:36

painful experience that those who had

12:38

violently broken their oaths to the

12:40

Constitution couldn't be trusted to hold

12:42

power again because they could dismantle

12:44

our constitutional democracy from within. They

12:47

created a democratic safety valve. President

12:49

Trump can go ask Congress to give

12:51

him amnesty by a two-thirds vote, but

12:54

unless he does that, our Constitution protects

12:56

us from insurrectionists. And third,

12:58

this case illustrates the danger of refusing

13:00

to apply Section 3 as written, because

13:02

the reason we're here is that President

13:05

Trump tried to disenfranchise 80 million Americans

13:07

who voted against him, and the Constitution

13:09

doesn't require that he be given another

13:11

chance. Thank you. The

13:13

Constitution doesn't require that he be given

13:16

another chance. The

13:18

Constitution protects us from insurrectionists. So

13:22

we're going to talk tonight about the justices discussing

13:25

what it would mean to prosecute Trump

13:27

federally for the crime of insurrection,

13:29

rather than having it adjudicated in,

13:31

for example, a Colorado trial court.

13:33

We're going to talk about the

13:35

justices debating Trump's lawyers' claims that

13:37

he's the only former U.S. president

13:39

who can't be banned from office

13:42

for committing insurrection. All the others

13:44

would be banned from office for

13:46

committing insurrection, but Trump personally can't.

13:49

We're going to talk about the justices asking

13:51

why one state should be able to do

13:53

something this consequential. That's one where the questions

13:55

went out like cannonballs, but the answers were

13:57

actually pretty good. So, I'm going to talk to you about the

14:00

So we have a lot to talk about tonight, but let's

14:02

start with these first couple of

14:04

takeaways here. Was this an

14:06

insurrection? And if there is

14:08

a ban in the Constitution on insurrectionists

14:10

holding office, but you

14:12

can't enforce it by preventing ineligible candidates

14:14

from running for office, then

14:17

how exactly does that ban get enforced?

14:19

Ari Melber, you are in the room today

14:21

when it happened you were there for the arguments.

14:24

First of all, let me ask you to critique my

14:26

summary. Do you think it's fair to pull out

14:28

those points as some of the pillars on which

14:30

this argument was held up? I think it's very

14:32

fair. It's the first time we've seen the aspects,

14:34

the insurrection, the insurrection discussed by the Supreme Court.

14:37

In terms of the argument about,

14:41

well, on the point of insurrection, I felt

14:43

like I was going to hear a lot

14:45

tonight, a lot today about what

14:48

counts as an insurrection. That snark

14:50

from Justice Jackson was priceless. But

14:53

we didn't hear a lot of substantive other

14:55

discussion about what it takes to call something

14:57

an insurrection. Does that tell us something important

14:59

about where the justices see the edge of

15:01

their job description

15:04

here in terms of what they ought to be

15:06

considering? Yes, it tells us a lot. And it

15:08

also speaks to how bipartisan this was. If you

15:10

go by the different justices appointed by different

15:13

parties, based on the questioning, which is

15:15

all we have to go on, I would

15:17

give you eight or nine votes likely

15:19

against the Colorado Trump ballot ban. And

15:21

that's not because all eight or nine

15:23

of those people are soft on insurrection.

15:26

It's because of the things you raised and that we heard

15:28

some in the questioning about. And so I'll give you a

15:31

detailed legal answer to that if you want, but I'll start

15:33

with something very simple, which is it was

15:35

clear by the end of the argument that

15:37

most of these people just didn't want to

15:40

go near ballot bans. The

15:42

reasoning came second. It was almost more honest

15:44

than usual how much everyone was like, we

15:46

don't want to do this. We're

15:48

not going to co-sign this. And then let's find

15:50

out how do we get out? And so I

15:52

would liken it to if anyone's ever had a

15:54

destination wedding invite that you're not excited about, like

15:57

these people you used to know better from a

15:59

while back. and it's in Antarctica and

16:02

your first like look let me tell you straight up that's

16:04

far away I heard it's cold weather

16:07

also I think it's really expensive tickets right you're

16:09

like brainstorming why you can't go back yeah I

16:12

have an energy how close are we

16:14

now any of those things might

16:16

also be true and someone then

16:18

might come to you and say oh there's a super

16:20

sale because not a lot of people want to go

16:22

to Antarctica super cheap tickets and you're like but it

16:25

wasn't just a ticker right there are other reasons and

16:27

that's all yeah that's what it felt like to me

16:29

and so if you're looking for this to be the

16:31

case that stops Trump I would tell you maybe you

16:33

find it to be bad news that you have in

16:35

the viewer or anyone listening thinking as a citizen but

16:37

if you're thinking does the court still work on a

16:39

nonpartisan basis in some ways we saw that answered with

16:42

how much it was like that and so the den

16:44

jump in briefly to your legal question yeah the

16:46

big thing was even

16:49

if it is an insurrection or even if this is

16:51

something that you should be kicked off the ballot for

16:53

who decides that is it just a random

16:55

Secretary of State in one state and

16:57

we have a lot of different types of ways we

16:59

pick secretaries of state and they vary in partisanship is

17:01

it judges in this state and as Chief Roberts put

17:04

it at one point being as kind of blunt

17:06

as he could he wasn't talking law or text he

17:08

just said wait but if we did allow this then

17:10

other states would punch back if we give them the

17:12

power and say any state can do this then they're

17:15

all gonna be knocking each other off the ballot now

17:17

let me tell you Rachel good answer to that there's

17:20

a good the Justice Roberts raised that issue

17:22

another justice raised that issue as well good

17:24

answers to that issue though from the lawyers

17:26

who are representing the Colorado voters I think Colorado

17:28

had a very substantive answer which is there

17:31

was an insurrection it was televised and there's

17:33

only one person who called those people to

17:35

town and that this idea of insurrections popping

17:37

up everywhere is not factually true and the

17:39

courts concern about that which I think includes

17:43

Democratic employees I think Justice Jackson was a Biden

17:45

appointee who's well versed on how they tried to

17:48

stop then president like Biden coming to office I

17:50

don't think she's minimized the insurrection I think her

17:52

point was yes but

17:54

we're still gonna run into who resolves that in other

17:56

words you could be factually right but still have an

17:58

arms race across the state States and that is

18:00

a concern for the court. And so this became,

18:02

if I was going to bottom line it legally,

18:04

this became much more of a debate about the

18:06

remedy. Should this be dealt

18:09

with in some other part of government than the problem?

18:11

The problem is huge. And let me stick with you

18:13

on that for a second, because the, and

18:15

we're going to talk in more detail about the

18:17

sort of parade of horrors. What if a state

18:19

can take a person off the ballot? What would

18:21

that mean? What would the other states do? There

18:23

would be retaliation. There would be reason, there would

18:25

be unreasonable actions taken by other states to take

18:27

other people off the ballot. We'll

18:30

talk about that in a little bit, but on

18:32

this issue of whether or not the states

18:34

do this or somebody else does, we also

18:36

got a parade of horrors today in

18:39

that courtroom about what happens if the states don't

18:41

do it. Because if there is a

18:43

ban on insurrection in the

18:45

constitution and it can't be enforced by the states, then

18:47

it has to be enforced by Congress, which

18:49

is inviting another January 6th disaster. That's

18:52

the rejoinder, right? It's one way or

18:55

the other. You may not like the states doing it, but if they

18:57

don't do it, the Congress is going to have to do it, and

18:59

that's going to be a disaster too. We've seen that before. Yeah,

19:01

now to sound like a lawyer, I think

19:03

that is a non-frivolous point. It is a

19:05

legitimate... Oh, thank you very much. No, it's

19:07

a legitimate point. And so what we saw

19:09

in the oral argument was you're

19:12

offering chaos. I see you with chaos.

19:14

Yes. But these now...

19:16

If you do, Dan, if you don't... And there's

19:18

a saying in the law about constitutional hardball. Well,

19:21

this is beyond hardball. This is sort of

19:23

constitutional flagrant fouls or constitutional violence or whatever

19:25

you want to call it. Trump

19:28

and his fans and his now convicted

19:30

sedition fans, right? He wasn't convicted

19:32

of sedition or charged with it. He waits...

19:35

He always thought of something else, but his fans, the people

19:37

he summoned, many of them have now been convicted of sedition.

19:39

They have now sparked this back and

19:41

forth. And we're going to hear, as you mentioned, from

19:43

the lawyer later tonight who was arguing that having gone

19:45

down this road, there need to be strong remedies pushing

19:47

back. Having said that though,

19:50

I think that the justices, including the

19:52

Democratic appointees, basically said, yes,

19:54

but not at the state level. Right. Let's

19:57

figure out some other bar. Right. as

20:00

the other bar here does sound a little scary, but

20:03

let's punt on that for now. All

20:06

right, our special coverage of today's historic

20:08

Supreme Court hearing is just getting started.

20:10

Still to join us, as already mentioned, the attorney for

20:12

the California voters in this case who argued today in

20:15

the court, Jason Murray is gonna be with us live.

20:17

Stay with us. States

20:20

have the power to ensure that

20:23

their citizens' electoral votes are not

20:25

wasted on a candidate who is

20:27

constitutionally barred from holding office. States

20:30

are allowed to safeguard their ballots

20:32

by excluding those who are underage,

20:35

foreign-born, running for a

20:37

third presidential term, or as

20:39

here, those who have engaged

20:41

in insurrection against the Constitution in violation

20:43

of their oath. I welcome the

20:46

court's questions. Fact

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21:55

Not that I'm aware, Justice Alito. Not

21:57

that I'm aware, Justice Alito. Nope,

22:00

this hasn't happened before. I

22:02

wonder why that is. Welcome back

22:04

to our primetime recap of today's

22:06

Supreme Court proceedings on whether former

22:08

President Donald Trump is eligible or

22:10

ineligible to ever again stand for

22:13

office in the United States after

22:15

what happened the last time. What you

22:17

just heard there was a nice short sharp jab

22:20

from conservative Justice Samuel Alito, answered

22:22

by President Trump's lawyer Jonathan

22:24

Mitchell today. The real

22:26

rejoinder to what President, excuse me,

22:28

what Justice Alito was asking there though, came

22:30

a few minutes later from

22:32

the lawyer on the other side, the lawyer for

22:35

Colorado voters Jason Murray in a

22:37

back and forth with Chief Justice John Roberts,

22:39

in which the Chief Justice essentially says

22:41

to the lawyer, hey, this is crazy that

22:43

we'd have to decide something like this, isn't

22:45

it? The lawyer then essentially responds, yes, it's

22:48

crazy, but the reason it's crazy is that

22:50

they're running a guy as their candidate for

22:52

president who just recently tried to overthrow the

22:54

US government. Yes, that is crazy. Nothing like

22:57

that has ever happened in this country before,

22:59

at least since the Civil War. But yeah,

23:01

it's crazy. And yeah, you do kind of

23:03

have to clean it up now. What

23:09

do you do with the, what

23:12

I would seem to me to be plain

23:14

consequences of your position? If

23:17

Colorado's position is upheld,

23:19

surely there will be disqualification proceedings

23:22

on the other side, and some

23:24

of those will succeed.

23:27

Some of them will have different standards of proof.

23:29

Some of them will have different

23:32

rules about evidence, although

23:34

my predictions have never been correct.

23:37

I would expect that a

23:40

goodly number of states will say, whoever

23:42

the Democratic candidate is, you're off the

23:44

ballot, and others for

23:47

the Republican candidate, you're off the ballot, and

23:49

it'll come down to just a handful of

23:51

states that are going to decide the presidential

23:53

election. That's a pretty daunting

23:56

consequence. Well, certainly, your

23:58

honor, the fact that there are potential frivolous

24:00

applications of a constitutional provision

24:02

isn't a reason. Well, no, hold on. I mean, you

24:05

might think you're frivolous, but the people who are bringing

24:07

them may not think they're frivolous. Insurrection

24:09

is a broad term.

24:12

And if there's some debate about it, I

24:15

suppose that will go into the decision. And

24:17

then eventually what we would be deciding whether

24:20

there was an insurrection when one president did

24:22

something as opposed to when somebody else did

24:24

something else. And what do we do? Do

24:26

we wait until near the time of counting

24:30

the ballots and sort of go through which states

24:33

are valid and which states aren't? There's

24:35

a reason Section 3 has been dormant

24:37

for 150 years. And it's because we

24:39

haven't seen anything like January 6th since

24:42

Reconstruction. Insurrection against the Constitution is something

24:44

extraordinary. It seems to me you're avoiding

24:46

the question, which is other states may

24:48

have different views about what constitutes insurrection.

24:50

And now you're saying, well, it's all

24:52

right because somebody, presumably us, are going

24:55

to decide, well, they said they thought

24:57

that was an insurrection, but they were

24:59

wrong. And maybe they thought it

25:01

was right. And we have to develop rules for

25:03

what constitutes an insurrection. Yes, Your

25:05

Honor, just like this court interprets

25:07

other constitutional provisions, this court can

25:09

make clear that an insurrection against

25:11

the Constitution is something extraordinary. And

25:13

in particular, it really requires a

25:15

concerted group effort to resist through

25:18

violence, not some ordinary application of

25:20

state or federal law. Counselor,

25:23

you're saying that someone, presumably us,

25:25

would have to develop rules for

25:27

what constitutes an insurrection? Unfortunately, yes,

25:29

sir. Unfortunately, we have come to

25:31

that moment. In U.S. history, yeah,

25:33

we're going to need to have

25:35

some rules around this. Joy Reed,

25:38

this is, I mean, I don't think anybody thinks

25:42

that the Colorado petitioners are going to

25:44

get their way from the Supreme Court

25:46

today. But some of these questions, the

25:48

way that they were raised and the way the

25:50

lawyers had to sort of say to the

25:52

Supreme Court justices, yeah, we're sorry we're here.

25:55

Yeah, we're here. It's really striking. It

25:57

was, it's not, it's not like it's every

25:59

day. that people try to overthrow the government with

26:01

violence. You know what I mean? And you know,

26:03

to that question, you actually have some

26:06

facts around which to organize an attempt

26:08

to throw a random Democrat off of

26:10

the ballot in Republican states. It's not

26:12

like you could just do it. And

26:14

let's just review the record here. Donald

26:16

Trump wasn't just declared an insurrectionist because

26:18

the Democrats in Colorado were mad. A

26:21

bunch of Republican petitioners took this case

26:23

to court. There was an actual trial

26:25

at which they determined and adjudicated based

26:27

on some Republican petitioners saying he did

26:29

try to be an insurrectionist. Fact number

26:31

two, he was impeached specifically

26:33

for attempting and supporting an

26:36

insurrection. There are plenty

26:38

of facts on the table that say that the

26:41

point of what they're saying was just a riot.

26:44

It wasn't a riot for no reason because the

26:46

people just weren't having a good day. It

26:48

was an a riot to attempt to

26:51

replace the winner of the presidential election

26:53

with the loser of the presidential election,

26:55

thereby to replace the government that was

26:57

supposed to take effect with a government

26:59

that was over. By

27:01

definition, that is attempting to pull

27:05

an insurrection and replace the guy. So, I mean, I

27:07

thought some of the arguments were so circular and the

27:10

idea that they can't make a

27:13

decision here out of the fear

27:15

that at some point in the

27:17

future, Democratic states would then

27:19

try, I mean, our Republican states would

27:21

then try to say that a different

27:24

person was an insurrectionist based on none

27:26

of those facts. All those things happened

27:28

again. Yeah, that would happen because it would

27:30

be an insurrection. But again, like this is, and I'll put

27:32

this to you. Thanks for joining us, Alex. Great

27:34

to be here. This was something

27:36

that was raised by both liberal

27:39

and conservative justices today, the idea, well,

27:41

if Colorado has done this to Donald

27:43

Trump, then other states might retaliate by

27:45

doing this in very unfair ways to

27:47

other candidates. The rejoinder to that is,

27:49

yes, you could also bring frivolous and

27:52

malicious prospections if you ever get caught

27:54

for anything in the criminal law. The

27:56

idea is though that our systems exist,

27:58

the structures of government. and testing of

28:00

facts exists in the courts. And

28:03

therefore, if somebody is going to

28:05

unfairly retaliate or retaliate not based

28:08

on the kind of fact pattern that Joy is describing, well,

28:10

we'd catch that and we'd let it go through, right?

28:13

Well, here's what I'll say.

28:15

I think it's far fetched to suggest that

28:17

all of a sudden this is gonna lead

28:19

to a spate of efforts to get Joe

28:21

Biden off of the ballot in red states.

28:23

But I do think there is, I mean,

28:25

what did Alito call it? Unmanageable consequences. Imagine,

28:28

forget Joe Biden. Imagine you just have a bunch

28:30

of red states where Donald Trump stays on the

28:32

ballot and a bunch of blue states where Donald

28:34

Trump's off the ballot. That in and

28:36

of itself is problematic, right? You don't even have

28:38

to like game out the scenario whereby Biden

28:41

is the victim of some political partisan hackery

28:43

related to this decision. You just have to

28:45

work out a scenario where Donald Trump's name

28:47

doesn't appear on all the ballots in the

28:49

United States. It's a huge problem for our

28:51

collection. That is a problem that happens now

28:53

for third party candidates, right? That there are

28:56

candidates who are running as third party or

28:58

independent candidates who get on the ballot in

29:00

some states and don't know their ballot in

29:02

others. And it's a quantitative matter, not a

29:04

qualitative matter. Major party candidates don't tend to

29:06

have that problem, but each state's ballot looks

29:09

different. I am not arguing

29:11

that that should be, that should be

29:13

the reason they decide what they decide,

29:15

but it seems really clear as one

29:17

person among many who sat looking or

29:19

watching a blank screen is listening to

29:21

somebody. Hearing it a speaker. But these,

29:23

all of these justices seem

29:26

very, much less concerned with the

29:28

textual interpretation of the originalism of

29:30

the Constitution and much more concerned

29:32

roundly about the political reality that

29:34

is ahead of them. And to

29:36

the degree that they may say,

29:38

it's not up to states to

29:41

decide this Congress or

29:43

the federal judicial system needs to decide

29:45

this, in which case you will inevitably

29:47

have a lawsuit in the

29:50

federal courts on the same page in short order.

29:52

But isn't that a consequence of the actual fact

29:54

that our elections are decided by the states?

29:56

Like that's actually the system, right? The states get

29:58

to decide the election. They get to

30:01

decide who qualifies in their state. That's

30:03

the system, right? And trying to say

30:05

that because states decide, and that what

30:07

you'd have to do is essentially disenfranchise,

30:09

right, all the states where Trump won

30:11

the electoral college votes in that state

30:14

on January 6, 2025, by saying, oh,

30:17

guess what? He ain't getting a waiver. Who's getting

30:19

two thirds of a vote in the House of

30:22

Representatives to get the waiver? So you're saying, let

30:24

the people vote for Trump. Then go to January

30:26

6, 2025. And

30:28

then they're not going to use that. Clearly,

30:31

they're not going to use that. It's absurd. But I

30:33

guess I would say that there's a weird thing. Just

30:35

to take a step back, part of what was sort

30:37

of weird about today is there's this

30:39

sort of Calvin ball that conservatives

30:41

play with their methodology on this

30:43

court, right? Which is they love

30:46

textualism except when they don't need

30:48

it. Exactly. Yes, exactly. Textualism is

30:50

like, look, I mean, we

30:52

have our personal policy preferences. We have outcomes we want.

30:54

But we can't be thinking about outcomes. We've got to

30:56

look at the text. The text tells us that everyone

30:58

can have a gun, and every public space in America

31:00

in the year 2023 per

31:03

ruin. And that's just what we've got to do. And

31:05

yes, if you've got a kindergartner with someone walking around

31:07

with a newsie, like, sorry, that's Constitution demands. Yes, there's

31:09

some pragmatic and prudential concerns that we shouldn't do that.

31:11

But that's what we can't look at. Sorry. We can't

31:14

look at that. So they do that when they like

31:16

the outcome. And then the

31:18

moment they don't like the outcome, they just chuck

31:20

it over. And we also have them chuck over

31:22

their textualism today. And I guess the weird thing

31:24

I want to say to sort of hop on

31:26

the other side of that hypocrisy is, like, personally,

31:28

I'm not a textualist. And I think all these

31:30

pragmatic considerations are a-OK to think about.

31:33

And actually, that is how we should be

31:35

thinking about the Constitution. And I'm a legal

31:37

realist. And I think Posner was right about

31:39

this, Richard Posner, the sort of judge

31:41

who talked about this pragmatism. And so all

31:43

of these pragmatic questions strike

31:45

me as perfectly legitimate. The other thing

31:48

that they totally jettisoned, to your point,

31:50

Joy, is, like, they're all about states

31:52

deciding this stuff. That's correct. Except in

31:55

two places. Bush v. Gore. Correct. Suddenly,

31:57

the state couldn't have died Good

32:00

one right only opinion. Yep. This only comes

32:02

from here and now here. It's like well,

32:04

what are you talking about states? They

32:07

just right states doing this we're gonna let

32:09

a bird do it Right and by the

32:11

way by the way, it's right and we

32:13

are doing that now do abortion because they

32:15

literally said the opposite They said in the

32:18

case of abortion You cannot apply a federal

32:20

standard and for states to live with it.

32:22

We have to let the states decide They're

32:24

saying states get to decide whether women's wounds

32:26

are owned by them But states can't decide

32:29

their own election rules when it literally says

32:31

in the Constitution that the elections are decided

32:33

They stay true, but there is let me just

32:35

say this there's I love my favorite moments in our

32:37

arguments is when like a justice is like come on

32:41

Honestly, that's what a lot of this comes down to

32:43

and there's a certain point where where any Coney Barrett

32:45

says You would be the voters of Colorado would be

32:47

deciding the election for the whole country, right? You take

32:49

them off the ballot and that's not true because it's

32:52

a blue state anyway But the point

32:54

so holds and Marie starts to say well

32:56

your honor No We would just be deciding

32:58

for the Colorado voters and she says but

33:00

come on like because it is the case

33:02

that we all Understand that the implications here

33:04

of the state action are absolutely what

33:07

happened with Florida, Florida, Florida, Florida Absolutely

33:09

them worked on the Bush v. Gore

33:11

case for Bush and so for Roberts

33:13

to be the one who posed the

33:15

question Why should we let one state decide?

33:18

I don't know ask yourself in the

33:20

year 2000 when you and Tony Barrett

33:22

and Kavanaugh were helping both sides I'm

33:24

one state for the consequence though to

33:26

be the the prohibition that is clearly

33:28

in the Constitution that says if you

33:30

engage in an insurrection you can't hold

33:32

office under the United States or in any

33:34

state if The the

33:36

consequence of this argument the practical consequence is

33:38

well, we can't have the states enforce

33:40

that Well,

33:43

we're gonna have Congress enforce it which is

33:45

just gonna be a rugby scrum Well,

33:49

that's what I mean if you can't do it until the

33:51

guy has been elected They're

33:53

in this Congress. No, they are what they are

33:55

saying what they're gonna write I would bet a

33:57

lot of money is that Congress has to has

34:00

to pass an enabling statute that spells

34:02

out specifically the procedures by which a

34:04

lot which got referenced today. The series

34:06

of acts passed on a reconstruction, some

34:08

of them including called the

34:11

enforcement acts in which Congress has to

34:13

specify a procedure because this is too

34:16

hard to interpret for courts and too crazy to

34:18

let to the states. Congress has to actually ex

34:20

ante pass some statute that says how to do

34:23

this and then we do it. But then Congress

34:25

won't do it. And of course not. And they

34:27

know. And they're saying but that passes a law

34:29

that's only for the president because I bring you

34:31

to Coy Giffen, the Trump cowboy who was

34:34

actually disqualified in the state of New

34:36

Mexico from holding office. It was some

34:38

local office, county commissioner, and there was

34:41

no enabling legislation needed for that to do that. So

34:43

what they're saying is it's a state law. But the point

34:45

what they're saying is they want you're going to have to

34:47

pass it just for the president because Katonji

34:51

Brown Jackson, Justice Katonji Brown Jackson did

34:53

get into this question of why didn't

34:56

the trappers of the 14th amendment include

34:58

the president? I guess they didn't have

35:00

the lurid imagination to understand that a

35:02

presidential candidate, somebody who could be president

35:05

would commit insurrection. And so why didn't

35:07

they specify the president? Just a

35:09

legal point. We're talking right now about the

35:11

what which is very important. Most

35:13

of the argument turned on the who. And

35:16

one of the cases they talked about the most

35:18

was this term limits case which isn't a perfect

35:20

case by the way. Can you just say the

35:22

name of the case is term limits. It's not

35:24

a case about term limits. Very

35:27

frustrating. The Supreme Court has previously

35:29

held that if you add

35:32

something, even something that sounds really reasonable

35:34

like we don't want people in Congress

35:36

forever, right, and we want to

35:38

have a limit on that amount of time,

35:41

they said that actually is adding an eligibility

35:43

requirement and you cannot do that. And so

35:45

yes, the what is super important. Indeed, I

35:47

would argue that the split on the

35:50

court is about the what. We might see that, by the way,

35:52

on the immunity case that we're watching. But

35:54

the who is if it's

35:56

a federal requirement that's in the

35:58

federal constitution about the the

36:00

14th Amendment, then what states

36:03

locally do, the who about their local offices is one

36:05

thing, but what they do about federal is different. And

36:07

so the who here would be, I don't know, Chris

36:09

says now you have a money down on live TV

36:11

about how they're gonna write the ruling. So we'll come

36:13

back, you could be right. The

36:15

other thing they could do is say, Donald

36:17

Trump, whatever you think of him, not

36:19

only hasn't been convicted of insurrection, but he

36:22

hasn't been charged with insurrection or an

36:24

insurrection-like offense, which would be insurrection or

36:26

sedition. And therefore,

36:30

the who has to be some prosecutor or some other

36:32

process at the federal level and not the state level.

36:34

And I know that's frustrating. I'm not even, by the

36:36

way, it's annoying when the justices do it,

36:38

but I'll do it too. I'm not saying I agree with all this stuff.

36:41

I'm just saying to you, I had to sit through law

36:43

school and then I just sit through the hearing today.

36:45

And the who is that? Is this something that is more

36:47

like a prosecutor or more like a federal thing instead

36:49

of a state thing? Well, so then what happens then,

36:52

let me ask you a question. What happens then if he

36:54

gets charged with US code 2380

36:56

through rebellion or insurrection, if

36:58

he's convicted of that, he would actually be

37:00

incapable of holding any office of the United States.

37:02

So they say- I could answer that

37:04

in a sense. He or anyone is toast if

37:07

that happens. Yeah, exactly. Problem, the

37:09

House January 6th Committee was quite clear in

37:11

its recommendation that Donald Trump should be charged

37:13

with inciting an insurrection. Jack Smith did not

37:16

charge it. So now we have a case

37:18

working its way through the federal courts where

37:20

Trump could very well be convicted of obstruction

37:22

in any number of big felonies, except

37:25

for inciting an insurrection. The question is, if he's

37:27

convicted and when sentencing comes down, is

37:29

disqualification from office part of the sentence,

37:33

does this count as something like- Can I

37:35

just say though that had Donald Trump been

37:37

charged with insurrection, the way the January

37:39

6th investigation recommended, had he

37:41

been charged, today there's no

37:43

chance that Brett Kavanaugh would have

37:45

sat there and been like, well, anybody

37:47

convicted of insurrection- Exactly, exactly. Completely disqualified.

37:50

It's only because that was a charge-

37:52

Exactly. That they're just saying- Like, oh,

37:54

but- Calvert law, yes. If he'd only

37:56

done that. Exactly. Yes,

37:58

it's called legislative. to the

38:00

purpose. Yes. All right. So,

38:03

let's come. We've got a lot more from today's

38:05

Supreme Court hearing, including the very, very sort of

38:07

poignant in a bad way moment where

38:10

the lawyer for the plaintiffs took a

38:12

question from his old boss, Neil

38:14

Gorsuch. Do

38:18

you agree that the state's powers here

38:20

over its ballot for

38:22

federal officer election have

38:25

to come from some constitutional

38:27

authority? Others

38:29

of this court have disagreed about that. I'm asking

38:31

you. Mr.

38:45

Chief Justice, and may it please the court, we

38:49

are here because for the first time

38:51

since the War of 1812, our

38:54

nation's capital came under violent assault.

38:57

For the first time in history, the

38:59

attack was incited by a sitting president

39:02

of the United States to

39:04

disrupt the peaceful transfer of presidential

39:06

power. By engaging

39:09

in insurrection against the Constitution,

39:11

President Trump disqualified himself from

39:13

public office. As

39:16

we heard earlier, President Trump's main

39:18

argument is that this court should

39:20

create a special exemption to Section

39:22

3 that would apply to him

39:24

and to him alone. He

39:27

says Section 3 disqualifies

39:29

all oath-breaking insurrectionists except

39:31

a former president who never before

39:34

held other state or federal office.

39:37

There is no possible rationale for

39:39

such an exemption, and the court

39:41

should reject the claim that the

39:44

framers made an extraordinary mistake. Did

39:47

the framers make an extraordinary

39:49

mistake? Welcome back

39:51

to our primetime recap of the U.S.

39:53

Supreme Court's deliberations today.

39:55

Share oral arguments today over whether or

39:57

not former President Donald Trump has been

40:00

Donald Trump should be disqualified

40:02

from standing for office. Jason Murray is

40:04

the Denver based lawyer whose argument helped

40:06

convince the Colorado Supreme Court that Trump

40:08

should be disqualified from Colorado's ballot.

40:11

Today, Mr. Murray made his

40:13

Supreme Court debut representing six

40:15

Colorado voters who brought that initial

40:17

challenge to Trump's eligibility. In

40:19

addition to more than a decade as a trial lawyer,

40:21

Mr. Murray has worked closely with two

40:23

of the justices who are up there on the

40:26

day of today. He clerked for Justice Neil Gorsuch

40:28

when Justice Gorsuch sat on the 10th Circuit U.S.

40:30

Court of Appeals. He also clerked for

40:32

Justice Elena Kagan at the U.S. Supreme

40:35

Court. Today, Mr. Murray appeared before

40:37

those justices in a different capacity, making

40:39

the case to them that the

40:41

ruling he won in Colorado should stand, that

40:43

Donald Trump should not be allowed on the

40:45

Colorado ballot. Joining us now live after a

40:48

very long, very stressful day is

40:50

Jason Murray. Mr. Murray, congratulations on your appearance at the

40:52

court today, and thanks for making time to be here

40:54

tonight. Thank you so much, and

40:56

I appreciate you having me on. So I

40:59

know that this was not your first time

41:01

in that courtroom, and you're very familiar with the

41:03

Supreme Court procedure, and you've seen a lot of lawyers

41:05

step up to the podium today. How was it

41:07

for you to do it for the first time? Well,

41:10

it was certainly a source of pride for me to

41:12

get to argue in the Supreme Court for the

41:14

first time, and also to be able to appear

41:16

before my former bosses. In

41:19

terms of how things went today, I don't think

41:21

it's going to come as a surprise to you

41:23

for me to tell you that most observers think

41:26

that the case is not going your way.

41:28

Most observers think that President Trump will

41:31

be allowed on the ballot, that Colorado's

41:33

decision to take him off the ballot

41:36

will effectively be overturned by this court. I

41:38

have to ask if you share

41:40

that common wisdom, if you feel like you

41:42

have a sense of where the justices are

41:45

going after what you went through in court

41:47

today. Well,

41:49

I won't sugarcoat it. It certainly

41:51

seemed like the justices were asking

41:53

really difficult questions, mostly procedural questions

41:55

about whether the states had the

41:57

ability to enforce Section 3

41:59

of the 14th Amendment, I

42:01

will say we got a lot of really difficult

42:04

questions at the Colorado Supreme Court as well. And

42:06

when the Colorado Supreme Court sat down to write

42:08

their opinion, they realized we were right on the

42:10

legal issues. So we hold out hope that as

42:12

the court gets deeper into the

42:15

legal issues here, they will realize that the

42:17

law and the history is clearly on our

42:19

side here. But certainly they did have hard

42:21

questions today. And I don't think the court

42:23

would decide a hard case like this

42:25

one without asking hard questions.

42:28

I'm going to ask you to sort of go back into

42:30

one of the questions on which I think you got some

42:32

of the hardest questions. At

42:34

least I'm not a lawyer to

42:36

a lay observer. And I think it's some of the

42:38

journalism about what happened today. You've seen people reflect

42:41

on what seemed like some very hard

42:43

questions about whether or not Colorado

42:46

as an individual state or indeed

42:48

any other state should

42:51

have a role

42:53

that wouldn't directly

42:55

but would effectively remove

42:58

a presidential candidate from

43:01

consideration by the voters of the

43:03

whole country. That issue, that

43:05

prospect was raised a few different ways by

43:07

the justices today. But I wonder if you'd

43:09

just take it holistically and address that criticism

43:12

of the take that the Colorado Supreme

43:14

Court and your clients brought

43:16

to the court today. It's

43:18

an important question. I think it's based

43:20

on a misunderstanding because we weren't here

43:22

today to ask the Supreme

43:25

Court to allow Colorado to decide these issues

43:27

for the nation. We were

43:29

asking the US Supreme Court to decide

43:31

as a matter of constitutional law whether

43:34

Donald Trump is eligible to be

43:36

president, again, based on his own

43:38

conduct of engaging in insurrection. That

43:41

isn't a political question for a state to

43:43

decide. That is a legal

43:45

question for the court to decide. And

43:47

although the case came up through a

43:49

state court, many important cases of federal

43:52

law, federal constitutional law come up through

43:54

state courts. But once they're at the

43:56

US Supreme Court, it is for this

43:58

court to make sure that they make the final

44:00

decision that will govern for the whole country

44:03

about the constitutional eligibility of the candidate. And

44:05

that was the case we were trying to

44:07

make today. Hi, Jason, Ari

44:09

Melber here. Congratulations to you and all

44:11

the lawyers today because it was a big case and

44:13

a momentous one on one of the most difficult things

44:16

to do is handle that hot bench with nine justices.

44:18

So congratulations to all of you. Two

44:21

questions. I don't know if you want to answer both of

44:23

them, but given what you

44:25

went through today, and it's so hard and

44:27

so like the whole thing is so fast

44:29

and complex, is there any part

44:32

where you'd want to do over or to extend your

44:34

remarks or build on an answer? Because that can happen

44:36

just in any part of life. So I'm curious if

44:38

that happened all today and you share that with us.

44:41

And then second, we discussed

44:43

today on this panel, and it was clear in

44:45

the courtroom that there

44:47

was bipartisan skepticism about one

44:49

of your key points, which

44:51

is that the insurrection was

44:53

this unique and rare event. And

44:56

I wonder, is there a way that through

44:58

your arguments or debrief, which matters sometimes even

45:00

more than oral argument or through

45:02

what you did today, that you

45:04

could better sort of, to paraphrase a different

45:06

legal standard, say, yeah, an

45:08

insurrection is one where you know it when you see it. And

45:12

we're not going to have a

45:14

ton of frivolous made up insurrection

45:16

claims if some bananas official

45:18

in some banana state says Biden did insurrection

45:21

when he gave an interview and you go,

45:23

yeah, yeah, that was very different than

45:25

the live TV document insurrection that we lived through.

45:27

You know it when you see it. So that's

45:30

the question, do over and that. Absolutely.

45:33

Well, let me take the first point first. I

45:36

wouldn't characterize it as so much of

45:38

a do over as the fact that

45:40

there were a lot of questions that

45:42

were being asked where I'd get 10

45:44

words in before I'd get another question

45:46

and wouldn't so much have a chance

45:48

to respond. So one thing, one point

45:50

I'd like to emphasize now, because we

45:52

didn't come up so much at argument

45:54

is just how clear the evidence was

45:56

and how lucid the Colorado Supreme Court's

45:58

factual findings were on the fact that

46:00

President Trump engaged in insurrection against

46:02

the Constitution. This isn't some sort

46:04

of secretive thing that relies on

46:07

dubious witness testimony. This was in

46:09

plain sight for everybody to see.

46:12

We saw the tweets. We saw his

46:14

words. We saw his campaign

46:16

manager, the day of, his former campaign

46:19

manager, call this a sitting president asking

46:21

for a civil war. We

46:23

saw that even after the Capitol came

46:25

under violent attack and members of the

46:27

mob were chanting hang Mike Pence, President

46:30

Trump poured more fuel on the fire on

46:32

Twitter by painting a target

46:34

on the back of Vice President Pence

46:37

and egging the attacking mob on. And

46:39

we saw his tweets at the end

46:41

when he praised the attackers and justified

46:43

their actions saying these are the things

46:45

that happen when an election is

46:48

stolen. This case is as close

46:50

to a virtual confession of

46:52

intent to incite insurrection that you can

46:54

possibly get. And so I

46:56

thought that some of the discussion about, well,

46:58

maybe one state will have one evidentiary record

47:00

and another state will have another, you know,

47:03

didn't fully engage with that

47:06

central point. And

47:09

if you, oh, I was going

47:11

to ask you to remind me what your second question

47:13

was because now I've forgotten it. Insurrection, do you know

47:15

it when you see it? I

47:18

think it's more than that. The history is really

47:20

clear on what an insurrection

47:22

is. An insurrection is more than a

47:24

protest gone wrong. An insurrection is more

47:27

than a riot. An insurrection

47:29

is a coordinated attack for

47:32

the purpose of resisting execution of law

47:34

by force. And Section 3

47:36

requires an insurrection against the Constitution.

47:39

And that hasn't happened since the Civil

47:41

War because here an insurrection against the

47:44

Constitution requires that you're attacking a function

47:46

mandated by the Constitution, not just some

47:48

ordinary law. And here we had an

47:50

attack on Congress's constitutional duty

47:53

to certify the presidential election

47:55

results. So hypotheticals about the

47:57

idea that a state might miss you.

48:00

use Section 3 to go after

48:02

their political opponents. I

48:04

think just misses the point. You

48:06

can always have frivolous applications of

48:08

law, frivolous cases that

48:10

are factually and legally baseless, and we trust

48:13

that our justice system will put an end

48:15

to them by saying this is baseless. I

48:17

don't see why Section 3 should be any

48:19

different. Hi, Jason. It's Joy Reid.

48:22

As a product of Denver Public Schools, I

48:24

will congratulate you and the state of Colorado

48:26

for making history by being in front of

48:28

the Supreme Court. There was a point, and

48:31

Justice Clarence Thomas, he didn't

48:33

ask a lot of questions. He

48:35

obviously asked the first questions as he's the

48:37

senior justice, but there was one point that

48:39

he was pretty animated with you. And

48:42

there was some irony, I'll just say this for myself, that

48:44

his wife, her relationship to the insurrection,

48:47

I found quite ironic and listening to him

48:49

speak, but there was a point at which

48:51

he talked about the plethora of Confederates who

48:53

were still around after the Civil War. There

48:56

were any number of people who could continue to

48:58

either run for state office or national office, so

49:00

it would seem, he said, that that

49:02

would suggest that there would at least

49:05

be a few examples of national candidates

49:07

being disqualified if your reading is correct.

49:09

There was a lot of engagement with

49:11

you on that question of if this

49:13

is such an obvious point and Section

49:15

3 is self-executing, why aren't there other

49:17

cases that we can cite where

49:19

insurrectionists were disqualified in the way that you

49:21

were arguing Donald Trump should be disqualified? I'd

49:23

love for you to say more on that.

49:25

If you could have a longer exchange, what

49:27

more would you say? One

49:30

of the extraordinary things about this case is that we had

49:32

about 50 professors of history

49:35

who are the leading scholars in

49:38

the Civil War and Reconstruction filed briefs

49:40

on our side in this case, and

49:42

they explained that history. They said that

49:45

immediately after the 14th Amendment was ratified

49:47

and even before, Congress was flooded by

49:49

requests for amnesty from people who knew

49:51

they would otherwise lose their jobs and

49:54

be kicked out of office. The

49:56

Union Army was evicting hundreds of

49:58

people on a weekly basis for

50:00

offices in the South that they were

50:03

ineligible to hold. And we had a

50:05

number of state court cases where state

50:07

courts were determining eligibility under Section 3.

50:10

I took it what Justice Thomas was asking

50:12

was something much more narrow than that broad

50:16

question, which is, were states

50:18

ever trying to restrict federal

50:20

officials from taking federal office?

50:23

And the answer is no, but that's because

50:25

of how ballots worked differently back then. States

50:28

have the power to run elections and to control the

50:30

ballots. That's incredibly clear from Article

50:32

2 of the Constitution. And

50:35

the difference is that back then states didn't

50:37

write the ballots. They didn't run the ballots.

50:40

Essentially, everyone was a write-in candidate. So

50:42

the only way that a federal officer who

50:44

was elected, like a member of Congress, would

50:46

have their eligibility determined is after the election

50:48

when they came to Congress and said, I

50:51

won. And then Congress decided whether

50:53

to seat them. But that history just doesn't

50:55

answer the question here because now states are

50:57

using that power to do ballot

50:59

access determinations. And so then you have to

51:02

ask, well, if states can

51:04

exclude a person who is not a natural-born

51:06

citizen or a person who's underage

51:08

from the presidential ballot, which they've been doing

51:10

for many decades, why can't

51:12

they exclude an oath-breaking insurrectionist? Jason

51:16

Murray, the lawyer representing Colorado voters who

51:18

sued to remove Trump from the state

51:20

ballot, who wanted the Colorado Supreme Court

51:23

defending that decision today at the United

51:25

States Supreme Court, serves a heck

51:27

of a big stage for your first time ever arguing

51:29

for the Supreme Court. I know that

51:31

there's pride that goes with it, but I hope you get some rest thereafter

51:34

and that the adrenaline come down is not too

51:36

painful. Thank you

51:38

so much. I appreciate that. All right. Good

51:41

luck. Much more to come in our

51:43

coverage of the Supreme Court hearing today over whether Donald

51:45

Trump is disqualified from the ballot. First,

51:48

a moment for the named plaintiff in

51:50

this case whose lawyer we just met.

51:52

She is 91-year-old Colorado

51:55

Republican Norma Anderson. This

52:00

is very personal to me. I've lived a

52:03

hell of a long time and I've

52:05

gone through a lot of presidents. And

52:08

this is the first one that

52:11

is trying to destroy the Constitution. The

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USAA, what you're made Of of, we're

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made for restrictions apply. Can

53:17

I ask you, now that I

53:19

have the floor, can I ask

53:21

you to address your

53:23

first argument, which is the

53:26

officer point? Oh,

53:29

sorry. Is

53:32

that okay if we do this and then we go? Sure,

53:34

sure, sure. Will there be

53:36

an opportunity to do officer stuff? Absolutely. Officer

53:42

stuff. We will get to the officer stuff.

53:44

Let's do it. Welcome back to

53:46

our primetime recap of the Supreme Court's

53:48

landmark arguments today on whether Donald

53:50

Trump's effort to overthrow the government the

53:52

last time he lost an election is

53:54

sufficient to keep him from standing for

53:57

election again, or from serving as president

53:59

if indeed he does. elected. Every

54:01

one of us who has ever reported on the

54:04

US Supreme Court knows better than to extrapolate from

54:06

oral arguments to try to divine how the justices

54:08

are eventually going to rule. We know we are

54:10

not supposed to do that. But

54:13

even with that caveat, I think

54:15

everybody's eyebrows shot up to their

54:18

hairline today when center-left Justice Elena

54:20

Kagan said this. Could

54:24

they be put most boldly? I think that

54:26

the question that you have to make in

54:28

front is why a single state should decide

54:31

who gets to be President of the United

54:33

States. In other words, you

54:35

know, this question of whether a former

54:37

president is disqualified for insurrection to

54:40

be president again is, just

54:43

say it, it sounds awfully national to

54:45

me. So whatever means

54:47

there are to enforce it would suggest that they

54:49

have to be federal

54:51

national means. That seems quite

54:53

extraordinary, doesn't it? No,

54:55

Your Honor, because ultimately it's this court

54:57

that's going to decide that question of

55:00

federal constitutional eligibility and settle the issue

55:02

for the nation. And certainly it's not

55:04

unusual that questions of national importance come

55:06

up. Well, I suppose this court would

55:08

be saying something along the lines of

55:10

that a state has the power to

55:12

do it. But I guess I was

55:15

asking you to go a little bit

55:17

further and saying why should that be

55:19

the right rule? Why should a single

55:21

state have the ability to make this

55:23

determination not only for their own citizens

55:25

but for the rest of the nation? Because

55:28

Article 2 gives them the power to appoint

55:31

their own electors as they see

55:33

fit. But if they're going to

55:35

use a federal constitutional qualification as

55:37

a ballot access determinant, then it's

55:39

creating a federal constitutional question that

55:41

then this court decides.

55:46

Why should one state be able to decide

55:48

who's the president? For the

55:50

plaintiffs challenging whether Donald Trump

55:53

can be on the ballot, that starts off

55:55

as this incredibly damning question from Justice Elena

55:57

Kagan today. But The Lawyer for

55:59

Colorado... The women after him The Colorado

56:01

Solicitor General. Had an answer

56:03

for that concern. Saying. Basically, hey,

56:06

states decide who gets on the

56:08

ballot all the time. That's the

56:10

system. It's not at all uncommon

56:12

for different states have different candidates

56:14

listed for the same elections Some

56:16

smaller party candidates give on the

56:18

ballot in some states are not,

56:20

and others some candidates are kept

56:22

off the ballot for eligibility, concerns

56:25

that some states take more seriously

56:27

than others. It. Happens. The.

56:29

Supreme Court can give guidance to make

56:31

it more uniform, but the states can

56:34

handle this. This colossal

56:36

surgeon or speaking. On the same point

56:38

just moments moments later said. There

56:40

is a huge amount of disparity and candidates

56:42

and up on the ballot and different states

56:44

and every election. Just this election. She said

56:47

there's a candidate who colorado excluded from the

56:49

primary ballot who was on the ballot in

56:51

other states even though is not a natural

56:53

born citizen. That is just a feature of

56:55

our process. It. Is not a

56:57

bug. So there's an answer

57:00

to this concern and we just heard she

57:02

summary give us another live answer. To it

57:04

here moments ago in his interview with

57:06

us when the justices expressed concern. That

57:08

individual states shouldn't be allowed to do

57:11

something. With. Such profound national consequences.

57:13

It definitely resonates did the

57:15

lawyers in the room. We.

57:17

Bought that concern? Answer it in a way that's

57:19

going to work on any or all of the

57:22

justices. Just the fact that Justice Kagan asked about

57:24

it at all. Mean. That

57:26

this ruling has foretold. Sorting.

57:28

Us that with some of the knows this thing solace

57:31

like senior editor and legal. Correspondent. For Slates

57:33

is also the host of the Amethyst podcast Alia. It's

57:35

great to see a thank you so much for being

57:37

with us! To

57:39

see if. Is there anything that we've

57:41

been talking about? You tonight that it's been like

57:43

up having a cat the wrong way for you

57:45

that you feel like we have screwed up.the wrong

57:47

way around or misunderstood. not

57:50

at all i might quibble with

57:53

our ease destination wedding metaphor when

57:55

it comes to me see the

57:57

itself so acutely like that tree

58:00

and speed, where it's

58:02

just hurtling from one crisis to

58:04

another. We have a court that's

58:06

in the midst of a legitimacy

58:08

crisis. We've got a Dobbs leak.

58:10

We've got a bad investigation of

58:12

the Dobbs leak. We've got ethics

58:14

scandals left and right. We've got

58:16

the first justice asking questions, had

58:18

his wife texting Mark Meadows and

58:20

trying to get state election officials

58:22

to change votes. All of that

58:24

is happening. And you sort of feel like the justices are

58:27

hurtling their bodies against the sides of

58:29

the train, just being like, get

58:31

me off this train. I don't

58:34

care what the rationale is. I'll

58:36

go with the one state shouldn't

58:38

decide rationale. I'll go with the

58:40

officer office rationale. I'll go with

58:43

there was no due process for

58:45

the president rationale. I don't care.

58:47

I need to be off. And

58:49

that's like anxiety was palpable. Yeah.

58:52

And Aria is saying that's exactly what

58:54

I mean. Right. So that means whatever

58:57

way they weren't going to go to the wedding. Yes,

58:59

exactly. Not sure I know the wedding. The

59:02

train isn't going to end well. Okay. So

59:04

my question is a non lawyer question for

59:06

you, which is I think that

59:08

we could all see the justices trying

59:10

desperately to get away from having to

59:12

do something substantive here that would address

59:15

the crisis at hand. What's

59:17

the damage? What's the risk?

59:19

What's the potential negative consequence of them

59:21

finding a way to dodge it? I

59:26

mean, I think at the most

59:28

sort of high minded constitutional level,

59:30

it's that this needed to be

59:33

answered. And that is, I think

59:35

what Colorado was saying is it

59:37

is your job to resolve a

59:39

constitutional question largely of first impressions.

59:41

It is your job

59:43

to decide for this entire country

59:46

whether or not the

59:48

14th Amendment Section

59:50

three is self executing,

59:53

whether the office officer

59:56

dichotomy holds, whether we

59:58

can allow insurrectionists to

1:00:01

run for office or not hold

1:00:03

office, there was a bucket of

1:00:05

questions that are exigent questions and

1:00:07

the court I think made

1:00:10

pretty plain that they'd rather or at

1:00:12

least I counted I think five or

1:00:14

six votes rather hang their

1:00:16

hats on this kind of dopey pragmatic

1:00:18

argument that you know we don't want

1:00:20

to decide because it will allow shenanigans

1:00:23

in other states. So it just seems

1:00:25

to me that the downside is and

1:00:27

this was a you know everybody knew

1:00:29

this was a really huge

1:00:32

vehicle it was a big big swing

1:00:34

case right they have an opportunity to

1:00:36

do the little swing when they get

1:00:38

the immunity case and maybe

1:00:40

that's what sets the trade-off here

1:00:42

right but this was a huge

1:00:45

swing case but we have an

1:00:47

unresolved constitutional question and

1:00:49

I'm not completely certain that

1:00:51

writing oh we need enabling

1:00:53

legislation gets them out from

1:00:55

under that question. On that point

1:00:57

about the immunity case being right around the

1:00:59

corner we expect that by Monday these same

1:01:02

justices will be asked to rule

1:01:04

in to weigh in on whether

1:01:06

or not that DC Circuit Court

1:01:08

ruling should stand the ruling that

1:01:10

says unanimously by that panel of appellate

1:01:12

dredges that that President Trump doesn't have

1:01:14

absolute immunity that he can be prosecuted in

1:01:16

federal court for what he tried after

1:01:19

the election. In discussing

1:01:21

immunity today I guess

1:01:24

he wasn't trying to bring up immunity but

1:01:27

President Trump's lawyer awkwardly brought it up with

1:01:29

with Brett Kavanaugh. Well while Brett Kavanaugh

1:01:31

was trying to focus on this question

1:01:33

of why President Trump wasn't prosecuted

1:01:36

for insurrection and we've been

1:01:38

talking about that a little bit tonight

1:01:40

this idea that because Trump hasn't

1:01:43

been charged specifically with insurrection that suddenly

1:01:45

seemed to create this incredible clarity among

1:01:47

all the justices that had that thing

1:01:49

happened then this would be something where

1:01:51

there would be an easy answer and

1:01:53

we'd know what to do and this

1:01:55

would be settled in some very definitive

1:01:57

way. your

1:02:00

reaction to that, it doesn't seem

1:02:02

clear to me why it's necessary for

1:02:04

Trump to be charged with or convicted

1:02:06

of insurrection for

1:02:08

the Constitution's ban on insurrection serving an

1:02:11

office to be effectuated. But

1:02:13

what did you think of how that part of it

1:02:15

was handled today? I

1:02:18

was a little frustrated at how deeply

1:02:20

disrespectful I felt that the

1:02:22

court was about the process

1:02:24

that happened in the

1:02:26

Colorado trial court. There was a trial

1:02:30

on the merits. There were, as

1:02:33

you just heard, meaningful

1:02:36

findings from that court. The

1:02:39

notion that trial courts can't do

1:02:41

this thing, determine whether there was

1:02:43

an insurrection, or even worse, Rachel,

1:02:45

the notion, and we heard this

1:02:47

from the Chief Justice, heaven

1:02:50

forfend, we would have to

1:02:52

somehow determine whether there was

1:02:55

an insurrection. Imagine if that

1:02:57

fell on us. And so

1:03:00

there's such deep disrespect for

1:03:03

what actually happened. And I think

1:03:05

it dovetails with one of the

1:03:07

things that you all said earlier

1:03:09

in your roundup, which I think is so important.

1:03:12

We have a court that for,

1:03:14

I guess, the first time in

1:03:17

20 years found

1:03:19

humility today, like institutional humility. We

1:03:21

can't do a thing. This is

1:03:24

the court that decides air pollution

1:03:26

and water pollution and vaccine policies,

1:03:28

and is going to determine what

1:03:31

emergency room doctors can do when

1:03:33

there's an abortion basis and

1:03:36

what the FDA can do. They can do

1:03:38

all that stuff, and they can't either

1:03:41

determine what an insurrection is or

1:03:43

defer to a trial court's definition.

1:03:45

It's very, very weird in February

1:03:48

of 2024 to

1:03:50

discover humility. Yeah, exactly.

1:03:53

Results oriented, as

1:03:55

we have been describing. Dolly looks like senior editor,

1:03:57

legal correspondent for the state, host of the Amick

1:04:00

to broadcast and my favorite person

1:04:02

to talk with about

1:04:04

the Supreme Court. Dalia, thank you so much for being with

1:04:06

us tonight. You

1:04:09

guys, Steph, I wanna bring you in on this.

1:04:12

In discussing sort of

1:04:14

what happened in the courtroom versus what's going to

1:04:16

happen next, I feel like

1:04:18

there's, unlike the immunity case, like there isn't

1:04:20

really a pace issue here. There isn't like

1:04:23

a lot of scrambling as to what's going to happen

1:04:25

next and what effect this will have on other cases.

1:04:27

This is either going to end it all or

1:04:30

it's not. And it feels like it's not.

1:04:32

But does that mean that what happened in the

1:04:34

courtroom today is essentially beside the point in terms

1:04:37

of the impact of this case? In terms of

1:04:39

beside the point, the concern I think tonight is

1:04:41

what do the American people know? You said

1:04:43

it at the top of this broadcast. Most

1:04:46

people were probably not listening today to the

1:04:48

audio for two hours. And as sad as

1:04:50

it makes us, not every

1:04:52

American is watching us right now, though I

1:04:54

totally think they should be. I think that's

1:04:56

not true. They should be. And

1:04:59

just think about it. During those two

1:05:01

hours, there was much debate over what

1:05:03

exactly is in the amendment. What government

1:05:06

job is considered an officer, previous cases,

1:05:08

but there was no debate, there was

1:05:10

no discussion, and there was no decision

1:05:13

over whether Donald J. Trump incited

1:05:15

an insurrection. And the risk now,

1:05:17

if the court rules in favor of

1:05:19

Donald Trump is a whole lot of

1:05:22

Americans could say, look, he didn't do

1:05:24

anything. And that's not the case. So

1:05:26

in terms of what happens next, like

1:05:28

we say every night here, making sure

1:05:30

the American people actually know the truth.

1:05:34

And it's a very good point, Steph, that if

1:05:37

we look at the details of this, it's important

1:05:39

and understand the nuance and the difference between the

1:05:41

different justices and whether it's gonna be an eight

1:05:43

to one decision or a six to three decision or

1:05:45

how this is gonna go. But if the takeaway from

1:05:47

this is, oh, they tried to say that Trump did

1:05:49

an insurrection. And they- Because he didn't do and he

1:05:51

won. He won that case. Then if

1:05:53

that's the takeaway, then people are A, missing

1:05:56

the point, but the court's decision may do damage

1:05:58

in terms of how we perceive. whether

1:06:00

or not the 14th Amendment exists, whether or not insurrection is

1:06:02

okay, and whether or not Trump did it. But there's

1:06:04

a whole lot of people that are going to take

1:06:06

that takeaway, people in the media and say, see, he

1:06:08

didn't do it, the high court said it. And the

1:06:10

point, I thought you made a really good point about

1:06:13

this sort of sudden humility that they found. I wonder

1:06:15

if they're going to find on the Mifapristone case, right?

1:06:17

Are they going to find it in cases

1:06:19

where, I mean, they seem to believe

1:06:21

that states have a lot of rights

1:06:23

when it comes to women's physical

1:06:26

body, but they're like, the state?

1:06:28

What's the state got to do with elections?

1:06:30

Well, kind of everything. And

1:06:32

as I was listening to Dahlia talk, I

1:06:34

was thinking about another amendment that was a

1:06:36

reconstruction amendment, the 15th Amendment. The

1:06:39

15th Amendment has what amounts to enabling legislation,

1:06:41

it's called the Voting Rights Act. They

1:06:44

have no problem chipping and chipping

1:06:46

and chipping away at the Voting Rights

1:06:48

Act, which is the enabling legislation like

1:06:50

100 years later, for trying

1:06:52

to enable the 15th Amendment, which is the one

1:06:54

that says that no one shall be denied their

1:06:56

right to vote based on race

1:06:58

or previous condition of servitude. But

1:07:01

on that amendment, they don't have any

1:07:03

problem saying that some states can allow

1:07:05

you to have voter ID, some states

1:07:08

don't. Some states will let students vote,

1:07:10

some states will only let you vote if you bring your gun license.

1:07:13

States are making decisions that give

1:07:15

you different outcomes for who has

1:07:17

access to the ballot every

1:07:19

day. And only some

1:07:22

justice departments like Obama's are

1:07:24

really litigating on the question of that. And the

1:07:26

reason I keep coming back to that is that

1:07:29

what people are also forgetting is the

1:07:31

insurrection was an attempt to deprive 80 million

1:07:34

people of their right to vote. It

1:07:36

was an attempt to literally

1:07:38

disenfranchise 80 million people disproportionately,

1:07:40

black folks in Detroit, people

1:07:42

in Georgia, people in Arizona,

1:07:44

a lot of Latinos in

1:07:46

Arizona. You're talking about trying

1:07:48

to disenfranchise people based on

1:07:50

believing that they aren't true

1:07:52

Americans and that the outcomes

1:07:54

of their selection of a

1:07:56

candidate shouldn't count. week

1:08:00

that we're in, it's Thursday, right? Between

1:08:02

today, when it's so evident that the

1:08:05

court is making political decisions, right? They're

1:08:07

not just extreme textualists. They're not originalists.

1:08:09

They're very much looking at the practical

1:08:12

implication of the law. And

1:08:14

then Monday, when they're going to get

1:08:16

this appeal from Trump to hear the

1:08:18

immunity case. And there's broad speculation that

1:08:21

if they rule in Trump's favor on

1:08:23

the 14th amendment, they might not rule

1:08:25

in his favor on immunity. Making clear

1:08:27

that this court takes into account politics

1:08:30

when it makes its decisions. I mean, it is

1:08:32

the court's credibility is at

1:08:34

a nadir. And

1:08:37

this, both today and what

1:08:39

happens or whatever transpires next week, the perception

1:08:41

that it's, you know, you know, a slap

1:08:44

on this wrist, a carrot on this hand,

1:08:46

in this hand and the stick in the

1:08:48

other makes so evident to the

1:08:50

American public, this court is not what it

1:08:52

proposes to be. And the question I

1:08:54

think is going to be somewhere along the line in

1:08:56

some Congress yet to

1:08:58

be elected accountability. I mean, how does

1:09:01

it happen and the prospect of unanimous

1:09:03

decisions from the court in either direction,

1:09:05

which of course will be praised as

1:09:07

a remarkable pseudo bipartisanship, but it's just

1:09:09

about again, results driven

1:09:12

negotiations. All right, much more

1:09:14

to come. And our recap of today's historic Supreme

1:09:16

Court hearing. Stay with us. We

1:09:19

understand that what we are asking the court

1:09:22

to recognize is something extraordinary, which is that

1:09:24

for the first time in our nation's history,

1:09:26

a major candidate for president of the United

1:09:28

States is ineligible for that office under the

1:09:30

Constitution. So we fully expected we were going

1:09:32

to get difficult questions. But we're confident that

1:09:34

when the court looks at the law and

1:09:36

digs into the issues, it will realize that

1:09:38

we are right in the final law as

1:09:41

it's written. President

1:09:58

Donald Trump, engage. an insurrection

1:10:01

by inciting a violent mob to attack

1:10:03

our capital and disenfranchise over

1:10:06

80 million people who voted against

1:10:08

him. In doing so, President

1:10:11

Trump disqualified himself from

1:10:13

holding office. That's not something we

1:10:15

are doing to him. That's not something any

1:10:17

court is doing to him. That

1:10:19

is something he did to himself under

1:10:22

our constitution. Disenfranchising

1:10:24

80 million people who

1:10:27

voted for his opponent, who was in

1:10:29

fact the winner of that election. Tonight's special edition

1:10:31

of The Last Word with Lawrence O'Donnell starts

1:10:33

at 10 30 p.m. eastern

1:10:35

tonight, so you have that to look forward to.

1:10:38

If you need a note for your boss in

1:10:40

the morning as to why you're sleepier than usual,

1:10:42

just let me know. I'll sign one for

1:10:44

you. Welcome back meanwhile

1:10:46

to our prime time recap of the Supreme

1:10:48

Court case today, this historic case about whether

1:10:51

or not former President Donald Trump did himself

1:10:53

out of a job, did himself

1:10:55

out of ever holding office again when

1:10:57

he participated in an insurrection against the

1:10:59

United States. Insurrection against the United States

1:11:02

isn't just a mean thing to say

1:11:04

about somebody, it's also a crime for

1:11:06

which you can be charged in federal

1:11:09

court. At today's arguments, Justice Brett Kavanaugh

1:11:11

pointedly raised the issue of

1:11:13

that possible federal prosecution.

1:11:17

It made sense in context, but it was clearly

1:11:19

a sensitive subject for President Trump's lawyer. Just

1:11:23

to be clear, under 2383, you

1:11:25

agree that someone could be prosecuted

1:11:28

for insurrection by federal

1:11:30

prosecutors, and

1:11:33

if convicted, could be

1:11:35

or shall be disqualified then from office.

1:11:37

Yes, but the only caveat that I

1:11:39

would add is that our client is

1:11:41

arguing that he has presidential immunity, so

1:11:43

we would not concede that he can be prosecuted for what

1:11:45

he did on January 6th under 2383. Understand, asking the question

1:11:49

about the theory of 2383. Thank you.

1:11:52

Understand, one could be

1:11:54

prosecuted for insurrection, one could be prosecuted,

1:11:56

not him. Of course, he couldn't

1:11:58

be prosecuted for anything. Not saying anything of

1:12:01

one way or the other about whether Donald Trump

1:12:03

might have committed the crime of insurrection Whether he

1:12:05

might be immune from that prosecution for that crime

1:12:07

Even if he did it that of course

1:12:09

is a sensitive issue for a sitting Supreme

1:12:12

Court justice to discuss with anyone Given

1:12:14

that that is an issue that the Supreme Court

1:12:16

will be taking up by Monday as in

1:12:19

several days from now Joining

1:12:21

us once again is our friend Andrew Weissman former general

1:12:23

counsel the FBI He was one of

1:12:25

the senior prosecutors on Robert Mueller special counsel

1:12:27

investigation Andrew Thank you for sticking with us

1:12:30

much appreciated What

1:12:32

do you think about the fact that Donald

1:12:34

Trump was never charged with?

1:12:36

Insurrection or any insurrection related crimes

1:12:39

that is something that the January

1:12:41

6th investigation in Congress Suggested

1:12:44

he should be charged with after

1:12:46

their very detailed investigation Yeah,

1:12:48

that had been one of the crimes that

1:12:50

was referred by Congress to the Department of

1:12:53

Justice That is

1:12:55

the one crime that has as

1:12:58

a penalty upon conviction that the

1:13:00

person shall be Not

1:13:03

be able to run for office.

1:13:05

They're disqualified So there was a

1:13:08

lot of discussion today as you've

1:13:10

been noting that that's essentially a

1:13:12

form of the congressional federally congressional

1:13:15

Sort of enabling statute for

1:13:17

this constitutional provision. I

1:13:20

think there probably are two reasons that that

1:13:23

This Department of Justice did not charge it

1:13:26

Remember the special counsel is part of the Department of

1:13:28

Justice And I think one

1:13:30

is that that crime had not been

1:13:33

charged for You know many

1:13:35

many many many years and so the

1:13:37

sort of idea that you're reaching back

1:13:39

to that crime To

1:13:42

single out Donald Trump would certainly have

1:13:44

been an attack. There's an answer to

1:13:46

that which is you know We've never

1:13:48

been in this situation before But

1:13:51

I think the other is if you think

1:13:53

that there's a claim of politics now if

1:13:56

you brought that charge

1:13:59

with the idea that that has

1:14:01

that penalty, you're avoiding all

1:14:03

that. And I think that's really worth taking

1:14:05

a step back to note that

1:14:08

if you think about what we're seeing,

1:14:10

but if you compare this

1:14:12

Justice Department, both in the discussion we're

1:14:15

having now, about the fact that they

1:14:17

did not charge insurrection, they did not

1:14:19

seek to make it disqualifying for Donald

1:14:22

Trump. And relate that also to what

1:14:24

you saw in the Rob Hur special

1:14:26

counsel report today. This

1:14:29

is a Justice Department that appointed

1:14:31

a special counsel for the

1:14:34

sitting president, appointed a special

1:14:37

counsel with respect to a

1:14:39

sitting president's son. You

1:14:41

did not have Merrick Garland, for instance, issue

1:14:43

a purported summary of

1:14:45

the report saying, obviously, that's something

1:14:48

on my mind today from

1:14:51

my work in the Mueller investigation. If

1:14:54

you just compare the

1:14:56

sort of propriety and sense of

1:14:59

what the Department of Justice should be doing or

1:15:01

not, and even if you disagree with it, it's

1:15:03

clear they're trying to adhere

1:15:06

to the rule of law and

1:15:09

appropriate functions of the

1:15:11

Department of Justice. And

1:15:13

it just is in striking contrast to

1:15:16

the Trump administration, where

1:15:20

the Department of Justice appointed a special

1:15:22

counsel and basically every single day that

1:15:25

that special counsel existed, there was

1:15:27

the constant threat that

1:15:29

Donald Trump would get rid of the

1:15:31

special counsel. So it's just remarkable how

1:15:34

different the two

1:15:36

Justice Departments are behaving.

1:15:39

That was sort of my take home when

1:15:41

I was thinking about the insurrection charge that

1:15:44

was raised in the oral argument

1:15:46

today. Let me also ask you about the other

1:15:48

thing that came up, I think, a little bit

1:15:50

awkwardly in that exchange between

1:15:52

the justice and the lawyer, which was this

1:15:54

question of immunity. Obviously, the Supreme Court, within

1:15:57

just the next few days, is going to consider whether

1:15:59

or not to leave standing

1:16:01

that circuit court ruling that said that

1:16:03

Donald Trump doesn't have immunity from prosecution.

1:16:07

I think, I mean, I don't know.

1:16:09

I think the common wisdom is probably that they will

1:16:11

take it up, but also that the

1:16:14

circuit courts ruling against

1:16:16

Trump is not in much danger.

1:16:18

I mean, again, it's the peanut gallery, who knows? We'll

1:16:20

see how it goes once the court

1:16:22

makes its own decision. But do you think

1:16:24

there is any interplay for

1:16:26

the justices between what they handled

1:16:29

today, this issue of Trump's qualification to be

1:16:31

on the ballot, and this next thing that

1:16:33

is coming down the pike to them, this

1:16:35

issue of immunity. Do you think that one

1:16:37

of them being so

1:16:40

near on the horizon has an effect at all

1:16:42

in terms of how they handle these issues? Yeah,

1:16:45

these are people. They are

1:16:47

humans. And yes, there is the, you know,

1:16:50

people are saying, well, maybe they'll take it

1:16:52

because they wanna show that they're even-handed. They'll

1:16:54

give with one hand and take with another

1:16:57

because they clearly wouldn't take that case

1:17:00

just to reverse

1:17:02

the DC circuit. That's just not

1:17:04

going to happen. They would be

1:17:06

taken to put their imprimatur on

1:17:08

that issue. But on the other hand,

1:17:10

I think having lived through today, they may be

1:17:13

saying, you know what? We do not need any

1:17:15

more Trump cases. And my own view

1:17:18

is that that's probably the way to

1:17:20

go because it'd be odd to take

1:17:22

a case where you might

1:17:24

be vindicating the idea that no

1:17:27

president is above the law, that

1:17:30

the unremarkable proposition that a president

1:17:32

cannot kill people with

1:17:34

impunity. I mean, it's just almost incredible

1:17:37

that we're having that discussion. But if they were

1:17:39

to take the case to vindicate that,

1:17:42

in many ways de facto, they would

1:17:44

be undermining it because it would delay

1:17:46

the case that is actually

1:17:48

trying to hold them accountable for crimes.

1:17:51

So it in some ways is

1:17:54

the worst possible vehicle for

1:17:57

them to be putting their imprimatur on.

1:18:00

that principle. Yeah. And again, just as

1:18:02

humans, like, even if you only think

1:18:04

about the three justices who were appointed by Donald Trump,

1:18:07

knowing that they would be sitting there for like a

1:18:09

couple of hours like they were today, and it would

1:18:11

have to happen again really soon. And

1:18:13

they'd have to spend the whole time talking

1:18:15

about talking about Donald Trump murdering people, murdering

1:18:18

individuals, there'd be like named people

1:18:20

who'd be murdered in the hypotheticals. And they'd

1:18:22

have to sit there and engage with it

1:18:25

in order to come to even if

1:18:27

it was a predetermined conclusion. I can't imagine

1:18:29

if you're Amy Coney Barrett that that sounds

1:18:31

like a fun way to spend a Tuesday

1:18:33

after today. Yeah, absolutely. If you just look

1:18:36

at today, we're basically, you know, just almost

1:18:38

almost it was a bloodless sort

1:18:41

of discussion today where there

1:18:43

was just limited discussion about

1:18:45

the actual insurrection. It was

1:18:47

so interesting hearing from counsel

1:18:50

for Colorado with us tonight,

1:18:52

where he actually gave so much

1:18:55

more color to and discussion about

1:18:57

what actually happened on January 6.

1:19:00

That didn't happen in the Supreme Court.

1:19:02

And I can see them very much

1:19:04

not wanting it to happen. And there's

1:19:07

how it all Yes, exactly. Exactly. Andrew

1:19:09

Reitzman, former general counsel to the

1:19:11

FBI and our stalwart friends on nights like

1:19:13

this. Andrew, thank you very much. I

1:19:16

do think that there's I think that this is

1:19:18

to your point, Alex, that it's impossible

1:19:21

to think that these justices are

1:19:23

going to handle these issues in

1:19:26

isolation. Yeah, that this has to affect

1:19:28

their willingness to take on the immunity

1:19:30

case when I don't think anybody expects

1:19:33

that they're going to overturn that appeals court ruling

1:19:35

that they're going to say that Donald Trump really

1:19:37

is immune from prosecution, even if he murders his

1:19:39

political opponents. So why put themselves through this again?

1:19:42

And the reality that just sort of

1:19:44

taking it up to put their stamp

1:19:46

on it is going to hand Trump

1:19:48

a win by further delaying the case.

1:19:50

That's another political consideration. I do think

1:19:52

it's important for people who feel dejected

1:19:55

by the likelihood that the Supreme Court

1:19:57

isn't going to rule in

1:19:59

the prosecution. on the 14th Amendment

1:20:01

case, if you're looking for political accountability for

1:20:03

Donald Trump, right, the 14th Amendment situation,

1:20:06

if you will, was always going to

1:20:08

be problematic and complicated and maybe result

1:20:10

in a situation that would have created

1:20:13

even more civil strife in this country.

1:20:16

The immunity thing, the

1:20:18

federal case that Jack Smith has built against

1:20:20

Trump is very narrow. It's built for speed.

1:20:22

We don't know when it's going to go

1:20:24

to trial, but it very well could go

1:20:26

to trial in the summer. He could get

1:20:28

convicted. That could be real

1:20:30

accountability in a sort of final

1:20:33

way that I think

1:20:35

a lot of people are looking for in this moment

1:20:37

when it comes to Donald Trump and the absolutely absurd

1:20:40

defenses he's mounted vis-a-vis his behavior in

1:20:42

and around January 6 in the 2020

1:20:45

election. Can I just for one minute,

1:20:47

I'd be the, you know, and I never like to disagree with

1:20:49

Andrew Weissman because I think he is friendly, but I mean, I

1:20:52

am not, I don't think the Justice Department has

1:20:54

covered itself in glory in any of this, to be

1:20:56

honest, because, you know, I

1:20:58

think it was totally appropriate to

1:21:01

appoint a special counsel in the

1:21:03

case of the current sitting president's

1:21:05

handling of documents because that is the

1:21:07

Justice Department. It's the guy he appointed

1:21:10

that's running DOJ. In the

1:21:12

case of the former president, it's

1:21:15

not clear why you needed a special

1:21:18

counsel and three years and

1:21:20

to avoid the most

1:21:22

obvious charge, which was

1:21:24

2383 insurrection. And

1:21:28

I think the outcome of the Colorado

1:21:30

case proves that it was a winnable

1:21:32

case. In five days, they proved

1:21:34

that Donald Trump did violate the law

1:21:36

when it comes to insurrection, that he

1:21:39

wasn't insurrectionist. And by not just being

1:21:41

direct and not doing the job that

1:21:43

he's getting the big bucks for, Merrick Garland, he

1:21:46

has caused us to have to

1:21:48

wait three years to have

1:21:50

the Supreme Court avoid doing the obvious as

1:21:52

well. And the truth is he

1:21:54

could have just been charged with insurrection

1:21:56

by the current Justice Department and it

1:21:58

would have been adjudicated. and over by

1:22:00

now and this would not be a question and

1:22:02

you can only blame one man, Merrick Garland. Yes, and I

1:22:05

know I didn't mention the name Merrick Garland. I think Jack

1:22:07

Smith took this up as quickly as he could. Jack Smith,

1:22:09

quick. Yes, yes. Jack Smith, quick. Yes, he did. So, yes,

1:22:11

he did. Two and a half years. Yes.

1:22:13

I mean, that's going to be the true question depending on

1:22:15

the timing of this trial. All right. Our recap of today's

1:22:18

arguments that the Supreme Court continues in just a moment. Stay with

1:22:20

us. If

1:22:23

President Trump were appointed to an office today,

1:22:25

if he were appointed as a state

1:22:27

judge, he could not hold that office, which

1:22:29

shows that the disability exists now. And

1:22:32

the fact that Congress has a power to

1:22:34

remove the disability doesn't negate

1:22:36

the President's qualifications, nor does it

1:22:38

implicitly bestow on President Trump a

1:22:41

constitutional right to run for offices that

1:22:43

he cannot hold. We've

1:22:54

been told that if

1:22:57

what Colorado did here is sustain

1:22:59

other states are going to retaliate,

1:23:01

and they're going to potentially exclude

1:23:08

another candidate from the

1:23:10

ballot. What about that situation? Your Honor, I

1:23:13

think we have to have faith in our

1:23:15

system that people will follow

1:23:18

their election processes appropriately,

1:23:21

that they will take realistic

1:23:23

views of what insurrection is under the

1:23:25

14th Amendment. Courts will review

1:23:27

those decisions. This court may review some of them,

1:23:30

but I don't think that this court should

1:23:32

take those threats too

1:23:34

seriously and its resolution of this case. You

1:23:36

don't think that's a serious threat? We

1:23:41

should proceed on the assumption that it's not a

1:23:43

serious threat. I think

1:23:45

we have institutions in place to handle

1:23:48

those types of allegations. will

1:24:00

retaliate and pull other candidates' names off

1:24:02

the ballot for no good reason, and

1:24:05

wouldn't that be terrible? This

1:24:07

is a case that former President Trump makes in

1:24:09

public all the time. The rejoinder to it is

1:24:12

an obvious one. We heard it there from

1:24:14

Colorado Solicitor General. The rejoinder to it is,

1:24:17

well, no, we're still operating within the

1:24:19

rule of law here. And if there's

1:24:21

no good reason for throwing someone off the

1:24:23

ballot, the courts won't allow it, just

1:24:26

like we won't allow retaliatory malicious

1:24:28

prosecutions for no reason, or any of

1:24:30

the other things that Trump is doing.

1:24:34

Joining us now is NBC News presidential historian Michael

1:24:36

Beschloss. Michael, it's lovely to see you. Thanks for

1:24:38

being with us tonight. Same here. Thank you,

1:24:40

Rachel. I wanted to ask you both about

1:24:42

the substance of today's hearing. I

1:24:44

think most observers believe that President Trump will

1:24:47

not be struck off the ballot based on

1:24:49

today's oral arguments, although who knows. But

1:24:51

also this larger point that I think

1:24:54

was illustrated by that exchange

1:24:56

we just played, which is so much

1:24:59

of what's happening in terms of the country

1:25:01

reckoning with Donald Trump right now is the

1:25:03

country reckoning with his bluster, his threats, and

1:25:05

the fear of what he might do if

1:25:07

he is held to account. And that's right

1:25:10

up on the Supreme Court's doorstep now. That's

1:25:13

for sure. And we just heard those words

1:25:15

in that clip. We've got to have faith

1:25:17

in our institutions. Well, you

1:25:19

know, that's true in general,

1:25:22

but I keep on remembering both

1:25:24

when I was listening today and also listening to

1:25:26

all of you talk tonight, watching what

1:25:29

Justice Robert Jackson said in 1949. He said,

1:25:31

the Constitution is not a suicide pact. And

1:25:37

what he meant by that is, you know,

1:25:39

the Constitution deals with all sorts

1:25:42

of issues, but if you can't

1:25:44

protect your country against threats like

1:25:46

rebellion and insurrection, such as we

1:25:49

saw in the Civil War and

1:25:51

we saw on the 6th of January,

1:25:53

then none of the rest of this

1:25:55

matters. So looking at it

1:25:57

historically, you know, the Civil War, And

1:26:00

it's a matter of grim record

1:26:02

that the Confederacy tried to take

1:26:04

down our republic, tried to

1:26:06

take down our democracy, break it up

1:26:09

into two or more countries, one of

1:26:11

which would be a big slaveholding republic.

1:26:14

The Union Army was able to

1:26:16

prevent that narrowly. But what

1:26:18

happened, as you know from your reading of history,

1:26:20

is that after Appomattox, after

1:26:22

the Civil War ended, Jefferson

1:26:25

Davis was actually saying, and this

1:26:27

is a direct quote, the leader

1:26:29

of the Confederacy supposedly defeated. What

1:26:31

he said was, the Confederacy was

1:26:34

not defeated in this war. We

1:26:36

won a victory and we were cheated of it. So

1:26:39

he tried to deal with that

1:26:42

by getting ex-Confederates elected to federal

1:26:44

office, elected to state office. And

1:26:46

so that's one of the reasons that we've got this 14th

1:26:49

Amendment, which was Congress and

1:26:52

the states putting themselves on the line in

1:26:55

a constitutional amendment saying, you know, we've

1:26:57

got to protect our country and make

1:26:59

sure that an insurrection like the 1860s

1:27:02

never happens again. All

1:27:05

I'm saying is, here we are in 2024. Donald

1:27:08

Trump has committed an

1:27:10

effort at insurrection. It almost succeeded

1:27:12

in 2021. He's

1:27:15

now saying, you know, I will do

1:27:17

it again if you elect me president.

1:27:19

I may have a dictatorship. I may

1:27:21

suspend the Constitution. How much more of

1:27:24

a warning do we need? In

1:27:26

terms of the Supreme Court taking what appears to be

1:27:29

its approach to this today, again, we're reading the tea

1:27:31

leaves in terms of the way the justices behaved and

1:27:33

the questions that they asked. But if they choose to

1:27:35

absent themselves from this process and say, hey, we hope

1:27:37

the 14th Amendment takes care

1:27:39

of itself. Hey, we hope that insurrectionism

1:27:42

is something that has self-defense. I

1:27:44

mean, in history, are

1:27:46

there parallels? Are there things that we should be

1:27:49

looking to in terms of the Supreme Court walking

1:27:51

away from confrontations with real and present dangers like

1:27:53

this? Absolutely. You know,

1:27:55

the Supreme Court knew with a Dred

1:27:57

Scott decision in 1857. what

1:28:01

they were unleashing by saying that slavery

1:28:03

would go on forever and it would

1:28:05

spread. This court is beginning

1:28:07

to remind me a little bit about the court

1:28:09

that of the court that brought us the Dred

1:28:12

Scott decision. And all I'm saying

1:28:14

is that for someone to say, well, let's

1:28:16

just have faith in our institutions, our

1:28:19

institutions did not work in the 1860s. They

1:28:22

almost didn't work in 2021. If

1:28:25

the Supreme Court does not act, if

1:28:28

Colorado does not prevail, then

1:28:30

we're basically saying leave it to the

1:28:32

voters. And all I can say is

1:28:35

to people watching us tonight, voters, Donald

1:28:38

Trump has said he wants to take down this

1:28:40

republic. Is that okay with you? It

1:28:43

almost happened before, twice. Are

1:28:45

we going to let it happen a third time this November?

1:28:48

NBC News presidential historian Michael Beschloss,

1:28:50

Michael, thank you. Thank you. Thank

1:28:52

you, Rachel. You're welcome. I

1:28:56

want to just add to what Michael said, because one

1:28:58

of the strange things today was that arguments

1:29:01

sort of for affirming Colorado tended to be

1:29:03

very historical and textual and the arguments backward

1:29:05

is very practical. Like, well, if we do

1:29:07

this, if we pull on this thread, this

1:29:09

thing will happen. And what

1:29:11

was totally missing were practical and prudential

1:29:14

considerations on the other side. Let's

1:29:16

forget about the text of the 14th Amendment. Let's just think

1:29:18

about if you let this guy on the ballot. Let's

1:29:21

say that we have an election in which

1:29:23

Donald Trump is polling ahead going into election

1:29:25

day, but the polls are wrong and he

1:29:28

loses. Let's say that we have

1:29:30

an election in which Joe Biden wins 270 electoral

1:29:32

votes to Donald Trump's 268. Totally

1:29:36

possible. That means every state is

1:29:38

a deciding state. Let's say one of

1:29:40

those states was decided by 5,000 votes, or as in the

1:29:42

case of Florida in 2000, by 600 votes. What

1:29:46

do you think is

1:29:48

going to happen under

1:29:51

those conditions? What

1:29:53

do you think will happen to the country if

1:29:56

this man is in that position under

1:29:59

those conditions? A

1:30:01

bigger mob with better weapons. Just

1:30:05

a few moments by colleague Lawrence O'Donnell will

1:30:08

take the reins with a special edition of the last

1:30:10

word. Don't

1:30:12

call him that. The

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