0:00

Last month, the Supreme Court of Colorado

0:02

and the main Secretary of State determined

0:04

that President Trump engaged in an insurrection

0:06

after taking an oath to uphold the

0:09

Constitution, and that he's therefore

0:11

disqualified from serving as President of the

0:13

United States under Section 3 of the

0:15

Fourteenth Amendment. Hello, friends.

0:20

I'm Jeffrey Rosen, President and CEO of

0:22

the National Constitution Center, and welcome to

0:24

We the People, a weekly show of

0:26

constitutional debate. The National

0:28

Constitution Center is a nonpartisan nonprofit

0:31

chartered by Congress to increase awareness

0:33

and understanding of the Constitution among

0:36

the American people. In this episode,

0:38

we'll delve into the meaning and purpose of

0:40

Section 3 of the Fourteenth Amendment and

0:43

the arguments for and against President Trump's

0:45

eligibility to run for president for a

0:47

second term, a question the Supreme Court

0:50

has decided to review.

0:52

Joining me to answer these questions

0:54

are two of America's leading experts

0:56

on Section 3,

0:58

and it's an honor to convene them today. Gerard

1:01

Maglioca is the Samuel R. Rosen

1:03

Professor at the Indiana University Robert

1:05

H. McKinney School of Law. He's

1:07

the author of four books, including

1:10

biographies of John Bingham and Bushrod

1:12

Washington, and has written extensively about

1:14

Section 3. Gerard, it's wonderful

1:16

to welcome you back to We the People. Thanks,

1:19

Jeff. Nice to be here. And Josh

1:21

Blackmon is Professor of Law at the South

1:23

Texas College of Law, Houston, where he holds

1:26

the Centennial Chair of Constitutional Law. His

1:28

latest book, An Introduction to Constitutional Law,

1:30

was a top five bestseller on Amazon,

1:32

and he's filed a brief with Seth

1:34

Tillman in Trump v. Anderson on behalf

1:36

of the petitioner. Josh, it's wonderful to

1:39

welcome you back to We the People.

1:41

Thanks so much, Jeff. Let's

1:44

begin with an overview of this

1:46

complicated and historic case. Gerard,

1:48

what are the constitutional issues and how do

1:51

you think the U.S. Supreme Court should decide

1:53

them? Well, where to begin? The

1:57

Supreme Court, in granting review, did

1:59

not specify... Which issues it wanted

2:01

Briefed or argued. So the argument is

2:03

gonna be something of a free for

2:05

all and could last five or six

2:08

hours. Probably air unless they do something

2:10

to limit things between now and then.

2:12

Bus basically and and and in no

2:15

particular order. The. Issues include.

2:17

Was. January sixth and insurrection within

2:19

the meaning of section three. Did.

2:22

Donald Trump engage in that

2:24

insurrection. If January sixth

2:26

was an insurrection, Is. The

2:28

presidency and office that is covered by

2:31

Sachs and three. Was. Donald Trump,

2:33

an officer of the United States

2:35

subject to sex and three when

2:37

he took the oath to be

2:39

President. Can. Section three

2:42

be enforced. By. A court

2:44

without an act of Congress setting

2:46

forth some procedures to implement that.

2:48

Is. They is the whole case, justiciable

2:50

at all. Ah, These

2:53

are and and I have not exhausted the

2:55

issues with that with that list of six.

2:57

So. My. View is the

2:59

Colorado Supreme Court's decision should be

3:01

affirmed. I think the majority got

3:03

a correct. And. I

3:05

think then if that decision is affirmed.

3:08

That. Would also permit. Congress.

3:11

If it's so desires to give

3:13

down from amnesty as he can

3:15

do by about two thirds of

3:17

each house, it also to some

3:20

extent allow states. Pursue. The

3:22

Primaries According to state laws. As

3:24

everyone knows, some states have rejected

3:26

these challenges to Trump's qualifications because

3:28

they say state law doesn't permit

3:30

such a challenge in a primary

3:32

and may not permitted at all.

3:35

And. Affirming the Colorado Supreme Court doesn't

3:37

necessarily mean that all states was far

3:39

from from the bout. although the Supreme

3:41

court could. Try. To say that

3:43

I could allow each stage of kind

3:45

of do what it wants, at least

3:47

in the primary process. Ah though that

3:50

gets a bit more murky. Thank.

3:52

You for that great overview and for outlining

3:54

the six question So hopefully we'll delve into

3:56

them. And and in a moment but a

3:58

trash black and them. You broadly

4:01

how you think us Supreme court

4:03

should resolve this case. Say.

4:05

Skyn chef have we on? It's a pleasure

4:07

you Gerard are. He's one of the leading

4:09

lights in this air and also really good

4:11

guys and was happy to see you see

4:13

my old friend I'm so I do have

4:16

a dog in the fire on a lot

4:18

of the arguments that it advance for advanced

4:20

by myself or my house has starred Tom

4:22

and many years ago long for Donald Trump

4:24

was even on the horizon. Tillman since Two

4:26

Thousand and Eight has taken the position of

4:29

the present is non officer the United States.

4:31

It's not a new position as articulated many

4:33

years ago but still means the. Most

4:35

forceful voice for their position in cities or

4:37

markets are he persuaded me rock two thousand,

4:39

twelve, or thirteen. So I've been on the

4:41

Tillman boat for a while. I

4:44

think it's. Possible. And the

4:46

maybe been likely that a number of

4:48

justice is find this argument attractive. It

4:51

would love to say that Trump is

4:53

not subsection three without having to say

4:55

what insurrectionist the other argued with who

4:57

advance in last two years or so

4:59

is at section three requires was cotton

5:02

force and legislation that is Congress was

5:04

passed. Some procedure ot person who is

5:06

disqualified can be removed from office or

5:08

otherwise odd. No such legislation been used

5:11

to knock Trump of the ballot and

5:13

said the been using state law. And

5:16

hear the leading authority is a key or

5:18

Griffin's case when she just she's for talk

5:20

a lot about it. But if I had

5:22

to sort of predict which is not worth

5:24

very much I think the first argument on

5:26

officer of United States in the second Arkansas

5:28

execution will receive. At. Least majority the

5:31

court. Would. Result in reversing the decision

5:33

of the Scour The Supreme court's whether the

5:35

the Five or block I couldn't tell you

5:37

by I'm very skeptical. Navy Chart agrees that

5:39

you get a majority to of from across

5:41

the board. Thank you very

5:44

much of as well. Let's now delve

5:46

into those two arguments that you just

5:48

flag animal want the others the first

5:51

as is the President and Officer of

5:53

United States and covered by section. for

5:55

you're Not Gerard, tell us your views

5:58

on not including. What? The

6:00

framers of Section Three thought about whether or

6:02

not the presidency was covered. right?

6:05

So first let me say that at It's it's

6:07

great to be on with Josh and I know

6:09

that. Josh and Professor

6:11

Tillman had this view prior to January

6:13

Six Twenty Twenty One because Professor told

6:15

him and emailed me about it prior

6:18

to January Six Twenty Twenty One when

6:20

I had posted the initial draft of

6:22

my first article on Sex and for

6:24

A so this is all of us

6:26

longstanding conversation that we've been having am

6:28

I testified about this question in the

6:30

trial in the Colorado case. I don't

6:33

want to. Sort. Of rehash that.

6:35

but basically they're just two thoughts.

6:37

Your one is that a lot

6:39

of people. Described. The

6:41

President as an Officer of the

6:43

United States during the time that

6:45

the Fourteenth Amendment was under discussion

6:48

including President Johnson, John being on

6:50

leading members of Congress. The. Evidence

6:52

on that side of things is pretty strong.

6:54

The evidence on the other side is not

6:56

a strong. Ah, and

6:59

that's true, No matter what you think

7:01

about what's that term might have meant

7:03

in Seventeen Eighty Seven? That

7:05

is to say I'm happy to

7:07

concede of though others disagree with

7:09

at the view of whether Officer

7:11

of the United States included the

7:13

President and Seventy Eighty Seven a

7:15

my view would be well even

7:17

if it did. Ah, Exclude

7:20

the president. During. The

7:22

Construction People to find the President as

7:24

an Officer of the United States. Now

7:26

the second saying is kind of more

7:28

of a purpose of approach. Which is

7:30

to say. Look. Everyone

7:32

agrees that Donald Trump is the

7:34

only President who never took an

7:36

oath to the constitution before he

7:39

became President, right? He never served

7:41

and an elected position and appointed

7:43

physician or military position. Ah,

7:45

Unlike all other presidents. So if

7:47

you were to say that section

7:49

three does not apply to Donald

7:51

Trump because. The. President is not

7:54

an Officer of the United States. It

7:56

would mean that he alone among all

7:58

Presidents, would not be covered by Section

8:00

Three. We saw President since Eighteen Sixty

8:03

Eight. Ah, an aggressor. Why would that

8:05

make sense? Does. Is there

8:07

a reason for that? Now is the tax

8:09

or unambiguous. Then. You'd say well

8:12

we just have to do it because that's

8:14

what it says but the text is not

8:16

on ambiguous and I would say then that

8:18

there's gotta be a reason to say that

8:21

Trump. Is. To be excluded

8:23

from section three were if President

8:25

Biden did exactly the same thing

8:27

and all other aspects of the

8:30

case for satisfied to say that

8:32

section three applied. Well.

8:34

Fine would be covered because he was

8:36

a senator before he became President. Trump

8:38

would not be covered because he wasn't

8:41

any government official before he became president

8:43

and I just don't think that really

8:45

make sense. Just

8:47

please tell we the people listeners your

8:50

view about why the President is not

8:52

an officer. The United sates. The

8:55

starting point here really is the fact that

8:57

office of United States is not a free

8:59

so is made up nice and succeed and

9:01

was use in for provisions of the constitution

9:03

and seventeen indeed I have been try to

9:05

lose to this. Be

9:08

pointless, close as the President points officers

9:10

or the United States. Presence.

9:13

On off an Isis or the commission's

9:15

class of the present or commissioned officers

9:17

United States present anatomist himself or the

9:19

Impeachment clause separates the President, the vice

9:21

present from offices of United States and

9:23

the key one is he owes Clause

9:25

says that do been Article Six Oath

9:28

for the officers in I see to

9:30

the present is not taken out of

9:32

Six Oath Never done It. This.

9:35

Is what the truck or Suv persuasive than

9:37

a nice for clauses the President is not

9:39

an officer. The high seats don't get eaten

9:41

sixty eight. We have

9:43

a draft process of section three, which durant

9:45

read about it someplace. We

9:48

don't know exactly why they chose the

9:50

words they did that. This precise wording

9:52

of Adopt is caucuses, his private meetings

9:55

or non the Capital For you know,

9:57

there were many different approaches, many different

9:59

draft. Ah, some versions

10:01

would have disenfranchised. All.

10:03

Former rebels. Some. Approaches would

10:05

have said all Rebels club hold

10:08

any office. But. The

10:10

only one up with something of a compromise. And.

10:12

A compromise said that

10:14

certain people. Can't.

10:16

Hold certain positions,

10:19

And they reach for language. And

10:21

the reefer language from the oath clause. In

10:23

fact, Section three very closely tracked the or

10:25

clause name. I say, wait a minute, you

10:28

know. Blackmon. Until mean that

10:30

sounds creative, But who said this Needs and sixty

10:32

eight. Years we've

10:34

heard from any record of anyone saying

10:36

in Section Three debates at the prison

10:39

is an office the nicest Desert Shield.

10:41

Some evidence to the point that the

10:43

Presidency is an office under the I'd

10:45

say it's discharge. Current evidence that affects

10:48

witnessed anything sing the present is an

10:50

office United States, but there's evidence of

10:52

the country are. We recently found Abacus

10:54

Free focusing on a Louisville Kentucky newspaper

10:57

and the Global Kentucky Newspaper was discussing.

10:59

Some other issues and said oh by the

11:01

way depressants and offers the united sates. He.

11:04

Points to the same evidence we two

11:06

points to the commission's cause. He points

11:08

the peace talks He points just a

11:10

stories of the presents an office the

11:12

I see so least some people who

11:14

are familiar with the topic in a

11:16

to succeed said the press on offers

11:18

the united sates dizzy tax will arguments

11:20

and I'm I'm glad that you're I'd

11:22

agree that gifts are going to purpose

11:24

and intentions. ah original public meaning rejects

11:27

that approach of jurisprudence and recently from

11:29

Boston to recall just as courses said

11:31

we don't care if the framers this

11:33

of rice ecstasy for. Wanted to protect

11:35

gays lesbians for matters the worth

11:37

they chose with into words trolls,

11:39

Law controls the President's not. An.

11:41

Officer of United States. will

11:44

let's turn out to be question

11:47

of president gerard as you mentioned

11:49

there are two leading opinions on

11:51

this case by supreme court justice

11:54

both by chief justice salmond chase

11:56

and they point in opposite directions

11:58

tell us about and

14:00

applied of its own force. No

14:02

act of Congress was required for Davis to

14:04

invoke it as a defense in his trial. And

14:07

the Chief Justice must have agreed

14:09

with that because he sided with

14:11

Davis's position in that

14:13

case. Now, that wasn't an opinion. Okay.

14:16

So in that sense, it's something

14:18

one has to sort of construe rather

14:20

than saying there are two different opinions.

14:24

But they are a contradictory. There

14:27

are explanations that have been

14:29

given, unpersuasive to me, that

14:31

they can be reconciled. But

14:34

more to the point, even if

14:36

you can reconcile them, it seems to me

14:39

that at best he was

14:41

right in Davis and wrong in Griffin.

14:43

That is that actually

14:45

maybe the first cut, yeah, it is applying

14:47

of its own force was correct.

14:50

And then Griffin got it wrong in saying that

14:52

an act of Congress was required. But there'll be

14:54

plenty of room for discussion of that when the

14:56

court hears the case. Josh,

14:59

in your brief with Professor

15:01

Tillman, you argue that

15:03

the Chief Justice's positions are consistent

15:06

because he was holding that Section

15:08

3 may be used as a

15:10

shield, but not a sword. Tell

15:12

us more about that distinction. This is

15:14

a point that's more of a federal courts than about Section

15:17

3. But the Constitution,

15:19

when we say it's self-executing, really has two

15:21

different meanings. So for example, if

15:25

the police prosecute you and

15:27

they decide to deny you some right, for

15:30

example, they try to admit evidence that was

15:32

seized illegally, or perhaps

15:35

they beat you in

15:37

their custody and they're prosecuting

15:39

you, you

15:41

can always raise the Constitution as

15:43

a defense. That is, the government's

15:45

prosecuting me for some crime. But

15:47

in the course of this prosecution, they

15:51

violate the Fourth Amendment. They

15:53

did something wrong. You don't need

15:55

any sort of federal legislation to raise

15:57

the Constitution as a defense. Everyone

16:00

agrees about that. What

16:02

if you want to go on the offense? That

16:05

is, what if you want to seek some sort of

16:07

affirmative relief against the government for

16:09

violating the Constitution? You need what's

16:11

called the cause of action. And we have that. It

16:13

was called Section 1983. This

16:16

is a statute that traces its roots to

16:18

Reconstruction. It was an act shortly after the

16:20

14th Amendment was passed in

16:22

various forms. And this says that

16:25

if any state official deprives you of your

16:27

rights under the color of law and yada yada yada,

16:29

you can go seek a remedy against

16:31

that official. We've always had

16:34

Section 1983. So

16:36

we never really had to think about this distinction, but it's

16:39

been there for a very long time. What

16:42

happened in Davis's case and what happened

16:45

in Chase's case reflects this distinction. In

16:48

the case of Jefferson Davis, it was a criminal

16:50

prosecution. And Davis made an argument

16:52

that perhaps you might find strange, but he

16:54

said that Section three displaced

16:57

any possible treason prosecution. In other words, because

17:00

Davis says, I can't hold any sort of

17:02

future office, you

17:04

can't prosecute for treason. That's the sole punishment. Now,

17:06

the argument might be right, might be wrong, but

17:09

he's saying as a criminal prosecution, a

17:11

defense is you can't raise it. Whereas

17:14

in Griffin's case, it was what's called a habeas case.

17:17

Who is Griffin? George or any

17:19

about this. He was a man, a black man

17:21

who was charged with shooting someone else, even killed

17:24

him, but he charged with shooting someone else, as

17:26

it seems to guy almost got lynched for it. He

17:30

was seeking habeas relief in federal court. And

17:34

what Chase was saying is you need some sort of statute

17:37

in order to say that the

17:39

judge who sentenced Griffin

17:42

was disqualified. So these

17:44

cases can be reconciled. There's a point of federal

17:46

courts, it's not really a question of Section three.

17:50

I would just put even just a little bit of caution.

17:54

We don't exactly know what Chase

17:56

said during the Jefferson Davis

17:58

trial. Right? And this

18:00

gets into the weeds, but there are actually

18:02

two versions of the case have been reported.

18:05

One report in 1869 where Chase

18:07

had absolutely nothing about whether Section

18:09

3 requires federal legislation. And

18:12

there was another version of the case reported some

18:14

years later, maybe even after Chase's death, that said,

18:17

the Chief Justice told the report and put on the

18:19

record that Section 3 executes on its own force. I

18:22

caution slightly because the reporter of that case

18:24

is not the most reliable person. Number

18:27

one, he was actually the lawyer in Griffin's

18:29

case, it's a coincidence. But more importantly, he

18:31

was a former Confederate general who apparently tried

18:33

to kidnap Abraham Lincoln. He might

18:36

have had an incentive to perhaps give Jefferson Davis

18:38

more credit than he was due. We

18:40

don't know why that sentence was there. It was not reported

18:42

at the time. But even if it's there, I

18:45

think you can reconcile these based on a fairly

18:47

deeply rooted aspect of federal court jurisprudence. Gerard,

18:50

further thoughts on that distinction about Section

18:52

3 as a sword, not a shield,

18:55

and then give us a sense of the history

18:58

and original understanding of Section 3 and

19:00

enforcement. In your article about Section 3

19:02

amnesty, you note that after Griffin's case,

19:04

Congress passed the first Ku Klux Klan

19:07

Act, known as the Enforcement Act of

19:09

1870, to protect

19:11

voting rights guaranteed by the 15th Amendment.

19:14

One of those sections, which gives

19:17

federal prosecutors the right to bring

19:19

warrants against state officials who

19:21

obstructed black voting rights, has been

19:23

invoked by Jack Smith, the special

19:26

prosecutor, to charge President Trump with

19:28

fraud to deny voting rights. And

19:30

the 1870 Act also said that

19:32

people who didn't resign if they

19:35

were ineligible were guilty of a

19:37

misdemeanor. What is that history, which

19:39

is about the effort to

19:41

enforce black voting rights through

19:44

the Enforcement Act, tell us about whether

19:46

or not Section 3 is enforceable

19:49

against President Trump without action from

19:51

Congress? Okay, well,

19:53

let me try to unpack that with three

19:55

points. First, on the question of sword versus

19:57

shield. You know, Mr. Griffin, using

20:00

Section 3 as a shield to try to

20:02

stay out of jail. So

20:04

I don't think that the cases can be

20:07

reconciled with that idea in

20:09

mind because Chief Justice

20:11

Chase did not allow Mr. Griffin

20:14

to use Section 3 to shield

20:16

himself from prison. It was his

20:18

defense basically in his

20:20

appeal of his criminal conviction. So

20:23

I guess I don't find

20:25

that a particularly good way to

20:27

distinguish between those two cases. Okay,

20:31

on enforcement, the first thing

20:33

to note is that Congress immediately

20:36

following ratification of the 14th

20:38

Amendment, indeed even right before

20:40

ratification, was giving people amnesty.

20:43

That is, they were exercising their power to,

20:45

with a two-thirds vote in each house, to

20:47

give people waivers under

20:50

Section 3. Now that was done before

20:52

there was any federal enforcement legislation. It

20:54

was also done in Virginia in

20:56

1868 at the time when Chief Justice

20:58

Chase was saying that he needed an

21:00

act of Congress to enforce Section 3.

21:03

So what were people getting waivers from?

21:06

They were getting waivers from a disqualification

21:08

that Section 3 imposed upon

21:10

them and that states couldn't

21:12

force or the army couldn't force against

21:15

them by removing them from office.

21:19

So that tells us that an act

21:21

of Congress is not required for enforcement

21:23

because they were giving waivers to people

21:26

from enforcement before any act of Congress

21:28

was there to do the enforcing. Now

21:32

when Congress passed the Enforcement Act in 1870, they had

21:34

a civil remedy for enforcing

21:37

Section 3 through a quill-warrant election

21:40

and a criminal remedy

21:42

that for people who were sort of

21:45

willfully refusing to leave office when they

21:47

were ineligible. And I think

21:49

the main thing that that tells us is that you

21:52

don't require a criminal

21:54

conviction is not required for disqualification.

21:56

So one argument that's been made

22:00

by others is that, well, President

22:02

Trump was not charged with insurrection.

22:04

He's not been convicted of insurrection.

22:06

Therefore, he can't be disqualified. So

22:09

that's wrong because hardly

22:12

anybody was convicted of anything at the

22:14

time related to their activities in the

22:16

Civil War. Yet

22:19

they were disqualified. And when

22:21

Congress got around to doing

22:23

an enforcement act, they provided that it

22:26

could be done civilly through a suit

22:28

filed by a United States attorney to

22:31

remove someone from office. So

22:34

I think it just reinforces the

22:36

point that this is a civil

22:38

action. It's not a punishment. It's

22:40

simply saying you are not meeting

22:42

the qualifications for office and

22:45

that it can be enforced in the absence of

22:47

a criminal charge. Josh,

22:49

your response to the history just mentioned about

22:52

why he thinks that the

22:54

history of enforcement under Section 3 suggests that

22:56

the clause is indeed self-executing. Sure.

22:59

Griffin was seeking what's called a collateral challenge,

23:01

that he was convicted in a state court

23:04

and he sought relief in a federal court.

23:06

That is, that the judge who preside over

23:08

his trial is disqualified. That is affirmative relief.

23:10

It was affirmative relief in 1868. And

23:14

even today, you need federal legislation to seek

23:16

cavious relief. You need some sort of

23:18

remedy to allow the courts to hear this. So,

23:22

true, he was trying to stand up jail, but this was

23:24

seeking affirmative relief in a federal court. It

23:27

might be useful to walk through some landmark cases that

23:29

people perhaps don't fully understand. One

23:31

of the first 14th Amendment cases was the slaughterhouse cases.

23:33

Right? This is where a bunch

23:36

of butchers objected to

23:38

a Louisiana law that limited to where you could

23:40

slaughter animals. And

23:42

they argue that it violates the Privileges or Immunities

23:44

Clause to have this violation of a right to

23:46

a living. What's not well known

23:48

is that the butchers didn't sue the government.

23:52

Instead, this was an enforcement action by the

23:54

Louisiana Attorney General against the butchers. And

23:57

they raised as a defense the prosecution, wait

23:59

a minute. in it. This

24:02

is a shield. The

24:04

14th Amendment is a shield. You can't prosecute us

24:06

because of privileges or immunities, called surprise or remedy.

24:09

The case decides the very next day is Bradwell

24:11

against Illinois, a very infamous case where

24:13

the court said that a woman has no

24:15

constitutional right to be an attorney. Here

24:18

Bradwell actually invoked enforcement legislation. She cited

24:20

a federal habeas Corpus Act, a

24:22

sort of weird claim, but

24:24

she came to court not based on the 14th Amendment, but

24:26

based on a statute. Every other

24:28

case you know about from Brown v. Board

24:30

of Education on down involves a federal legislation.

24:34

The Quill Ranto statute mentions actually very

24:36

useful. Shortly after Chief Justice

24:38

Chase Rose's opinion, we've not seen any

24:40

debates in Congress saying, oh, Chase is

24:43

wrong. Chase is wrong. Instead, they said,

24:46

well, let's pass a statute. And

24:48

in some regards, maybe Congress responded to

24:50

Griffin's case. That is, well, maybe

24:53

Chase is right. Maybe Chase is wrong, but

24:55

we should respond by creating this mechanism, this

24:57

Quill Ranto, which is used to enforce Section

24:59

3. So even if Chase may not have

25:01

been correct, and I think he was, Griffin's

25:04

case settled the matter. And for 150 years,

25:07

people favorably cited Griffin's case. It's been cited

25:09

all over the board in federal courts and

25:11

state courts. It's only until recently when some

25:13

good friends of mine decides otherwise, people start

25:16

questioning Griffin's case. There's a concept called liquidation.

25:18

When you have this precedent that's so deeply

25:20

entrenched, it becomes the law. And I think

25:23

even in any event, the courts should

25:25

find Griffin's case not binding, but highly persuasive

25:27

of the evidence as understood in 1868. Well,

25:31

let's turn now to the question

25:34

of whether or not January 6th

25:36

was an insurrection. How did

25:38

the Colorado court and main secretary

25:40

of state find that it was?

25:43

And what procedures do you think

25:45

the Constitution requires for deciding

25:47

whether or not something was

25:49

or wasn't an insurrection? Basically,

25:52

we can understand an insurrection

25:54

through a Common

25:56

Law approach, primarily looking at

25:58

cases that. Before the

26:00

Civil War Looking at other legal

26:03

authorities to understand that it basically

26:05

involves the public use of violence

26:07

by a group of people. Ah

26:10

that are attempting to hinder prevent

26:12

the execution of of the law

26:14

and then for section three purposes

26:16

I would say prevent the execution

26:18

of the constitution because the constitution

26:20

or oath is referred to as

26:22

well as the kind of constitution

26:24

itself in the text of section

26:27

three. Now the

26:29

process for determining that. Look

26:31

into sections he doesn't tell us the

26:33

answer to that. Ah, everyone

26:36

at the time understood the Civil

26:38

War to be an insurrection, so

26:40

that issue didn't arise in the

26:42

immediate aftermath of the Civil War.

26:44

Now what if what we have

26:47

we have the state election. Ballot.

26:50

Eligibility Challenge process to evaluate

26:53

that. And. That

26:55

varies from state to state. In Colorado,

26:57

it involved a bench trial that lasted

26:59

for a week. In. Maine

27:01

it involved at all day administrative

27:03

proceeding before the Secretary of State

27:06

and I understand now that essentially

27:08

the appeal of that decision has

27:10

been put hold now that the

27:12

Supreme court has granted surfer are

27:15

so. Ah, there is no

27:17

uniform process for that. That's.

27:19

Too bad, but I don't think

27:21

it means that there is a

27:24

problem one has to look at

27:26

the individual adjudication set have taken

27:28

place and evaluate whether they're consistent

27:30

with to process. And if so

27:32

then that is enough, at least

27:35

for the purpose of the factual

27:37

findings that were made. I would

27:39

add that the factual findings regarding

27:41

January Six also drew quite a

27:44

bit from the Congressional Report. right?

27:46

Which was a and of report

27:48

of a house of Congress not

27:50

just of state court so. I.

27:53

Think that that. Should.

27:55

Give. Confidence. in

27:57

the factual findings know whether you then

28:00

want to say that that means that

28:02

therefore Donald Trump engaged in insurrection or

28:04

that it was an insurrection, those are obviously

28:06

legal questions that the court's going to have

28:08

to review de novo.

28:12

Josh, how do you

28:14

think the court should rule if it

28:17

decides those questions de novo was

28:19

January 6th an insurrection? And

28:22

might the history of using

28:25

the law to prosecute

28:27

as insurrection forms of political

28:29

protests that their defenders said

28:31

were legitimate, give the court

28:34

pause as it tries to identify adequate

28:36

procedures for deciding what an insurrection is?

28:40

This is what I think Justice Frankford would call

28:42

a thicket, right? For

28:46

starters, no one from January

28:48

6 has been charged with

28:50

insurrection. Jack Smith, who's

28:52

not a shrinking violet, has

28:54

charged people with a vicious conspiracy obstructing

28:56

official proceedings and so on. But

28:59

no one has charged anyone with insurrection to federal

29:01

statute. The statute was signed to law by President

29:03

Lincoln in the midst of the Civil War. The

29:07

second point I'll make is we don't

29:09

think you need a conviction under the

29:11

insurrection statute to be disqualified by Section

29:14

3. We don't take that position. We

29:16

think it'd be a very good indication that there was a

29:19

termination of insurrection. The

29:22

third point is even if January 6th

29:24

was an insurrection, you still have

29:26

to prove that Trump himself engaged in it. Now

29:28

this is undisputed. He didn't go to the Capitol.

29:30

He didn't break a window. He didn't knock over

29:33

a flagpole and stab someone with

29:35

it. He didn't put on a Viking helmet

29:37

and started screaming on the speaker's desk. He

29:40

didn't do these things. He did

29:42

give a speech. There's some

29:44

first amendment issues there. He did

29:46

issue some tweets in the weeks leading up to the

29:48

event. And he did, according

29:51

to some, not take actions to

29:53

stop the actions at the Capitol.

29:57

We've written in our article, that is Seth and I, that

29:59

whatever Trump did does not amount to

30:01

engaging. He may have given aid and

30:04

comfort. He may have supported it, but

30:06

didn't personally engage in this specific intent

30:08

crime. So if

30:10

the court actually gets past the execution issue

30:12

and gets past the Office of the United

30:14

States issue, perhaps

30:17

one off ramp is to say that whatever happened on

30:19

January 6, Trump didn't engage in it. But I am

30:21

skeptical the court wants to do this. Why? You

30:25

can see where this leads, Jeff, your question hinted at it.

30:27

Where the various Black Lives Matter riots

30:29

and rallies in the summers of 2021

30:33

and 2020 were those insurrections. Was

30:35

the occupation of a city block in the

30:37

state of Washington? The no

30:40

go zone? Was that an insurrection? You

30:43

know, what will protest the White House

30:45

insurrection that Donald Trump wants to vote the Insurrection

30:47

Act for? Whatever the court says

30:50

here, but insurrection will come back to haunt

30:52

it very, very quickly, which is why I

30:54

can't imagine the court affirms across the board.

30:57

I think it's easy enough to say that no, it's

30:59

been charged with insurrection. Name the federal government thinks within

31:02

the direction. That's good enough for us. Gerard,

31:05

further thoughts on that question

31:07

of whether this is a dangerous

31:10

line to draw because it risks

31:12

calling political protests and insurrection at

31:14

the time of the founding during

31:17

both fries rebellion and the whiskey

31:19

rebellion. There were concerns that the

31:21

federal government was converting what John Adams called

31:24

a riot into an insurrection. And one reason

31:27

Adams pardon the fries

31:30

rebellion rebels,

31:32

including John fries was because he

31:34

didn't want to criminalize political

31:36

protest, which had been done on

31:38

this edition acts. Is there a danger here? And

31:41

might that lead the court to require

31:43

very high procedures for deciding whether or not

31:45

something's an insurrection? Well, I'm

31:47

not sure it's so much a procedural question

31:49

as a substantive one, right? Now I would

31:52

distinguish between two things. One is the question

31:54

of whether January six was an insurrection. I

31:56

don't think it's a close case On

31:59

that on that point. Other examples wouldn't

32:01

be harder cases. Ah, but I

32:03

don't think they have to really

32:05

worry too much about that because

32:07

this is such a poor thing

32:09

in terms of an attack on

32:11

the national capital. To disrupt

32:13

the peaceful transfer of authority to

32:16

the Juliet Max elected. Next

32:18

administration. So. I think

32:20

that's an easier one on the question

32:23

of engagement. Look. Clearly

32:25

they're gonna talk about Brandenburg and First

32:27

Amendment cases and argument. I mean, I

32:29

think that's true. Not. So much

32:31

because it's it's a strong argument, but because.

32:34

They're. Very familiar with the First Amendment they

32:36

deal with at all times. I'm sure they're

32:38

gonna be more comfortable addressing the case from

32:40

that vantage point then they would be with.

32:42

Some of these are the issues we just

32:45

discussed which are more ah, unfamiliar to them.

32:47

Ah, And the look they they

32:49

will have to think about your how

32:52

brandenburg how the first Mm interact with

32:54

the Fourteenth Amendment. First of all because

32:56

section three is of course a modification.

32:59

Of. The Four of the First Amendment

33:01

Number One, Number Two. Well okay, what

33:03

do you think about the application of

33:05

the Brandenburg Standard if that's the standard

33:07

to be applied to what from did

33:10

and the facts that were found. On.

33:13

Now. I don't know

33:16

that they're going to look to best

33:18

first to resolve the case. I'm sure

33:20

they are gonna look to things that

33:22

are. Ah, A little cleaner

33:24

or simpler as at least possible

33:26

ways of resolving the case, but

33:29

they are. I'm not really terribly

33:31

concerned about the problems that it's

33:33

gonna pose, because to some degree,

33:36

this is something where they've they've

33:38

got a very clear record before

33:40

them. And. You know it's it's not

33:42

quite. You know that? This the Slaughterhouse

33:44

cases that adjustments as you know that

33:47

that there's the line about how the

33:49

Civil War is kind of to reason

33:51

to be called history but familiar to

33:53

us all. And I think that that's

33:55

kind of true for January Six, given

33:57

that they are all there aren't near

33:59

to. The scene of all of that

34:01

occurring. And I think from

34:03

that vantage point, they'll have a com

34:05

to be able to constantly resolve this

34:08

if they get to those questions. Just

34:11

more sauce please on whether or

34:14

not President Trump engaged and insurrection.

34:16

As you say, none of the

34:18

January Six descendants had been. So

34:21

charged and Congress in it's findings

34:23

that is l that's President Trump

34:26

had assisted or aided the insurrection

34:28

but not that he didn't days

34:30

in the insurrection. If the court

34:32

did reach this question, how would

34:34

they take into account these facts

34:36

and might say hold that the

34:39

Colorado court didn't apply a version

34:41

of the Brandenburg standard and and

34:43

require the findings to me for

34:45

some standards are tos more than

34:47

how you would result of this.

34:51

Section. Three defined to

34:53

offenses. Number. One engage

34:55

insurrection rebellion. Number.

34:57

Two. Given. Income for to

35:00

be enemies to their to specific offenses.

35:02

Engage insurrection, To.

35:05

Given. Aid Or Comfort enemies. Given

35:08

aid or comfort is somewhere to we

35:10

michael compost liability years or indirectly.your i's

35:12

that you helped to crime these assaulted

35:14

if is engaged in the your says

35:17

engage is a specific intent so as

35:19

actions that are describes the Genesis reports

35:21

maybe Rice Little getting aid and comfort

35:23

and insurrection but as with the taxes

35:26

it's just eight or cooper to enemies

35:28

that is foreign people from blood relations

35:30

and as issue here. Are

35:33

engaging insurrection so I don't think trump

35:35

engage in at. The. Heart of Questions

35:37

actually the first minish you the brand of

35:39

her question. Now unfairness says I rub as

35:42

as and January Seventh of Two Thousand and

35:44

Twenty One with flags as issues rise to

35:46

get so. and during the trump

35:48

impeachments we were viciously attacked say no no

35:50

no the first them it doesn't apply in

35:52

the peace and trials doesn't matter brand the

35:54

book says and with of those wrong then

35:57

but here we are weren't corp and brandenburg

35:59

ought to apply And

36:01

there's some irony. The government's arguing

36:03

that Trump's speech on January 6 was

36:06

in his private capacity, not in his governmental

36:08

capacity. I agree with that. And if Trump

36:10

is speaking as a private citizen, he has

36:12

a full plan of first amendment rights. Brandenburg

36:15

was a case that has some not so

36:17

pleasant facts. You had a Ku Klux Klan

36:20

member who was ranting about having a march

36:22

on Washington and doing some awful things. He

36:25

was basically charged with inciting violence, inciting

36:27

a crime. But the court said, no,

36:29

no, no, you can't prosecute him because

36:31

the so-called criminal activity was in

36:34

the future. It wasn't imminent. And

36:36

that's a key phrase, imminent. The

36:38

Colorado Supreme Court, when they're applying Brandenburg, said, we

36:41

will consider it not only the speech, but also

36:43

the tweets leading up to it. And

36:45

that's not clear. And in fact, I've had

36:48

some debates about this issue. Brandenburg didn't squarely

36:50

say that you can look to everything that

36:52

came before it's determined context. As

36:54

I read it, it's let's look at the

36:56

speech and did this speech by itself incite

36:58

violence. If you limit the justice

37:00

speech, I think it's protected under Brandenburg. Sure, he

37:03

said, fight like Calibriels said, march peacefully. I think

37:05

on balance this we protected speech. And if

37:08

it's protected speech, it certainly can't form the

37:10

basis. And

37:12

I think it's hard made a point

37:14

offhand that Section 3 modified the First

37:16

Amendment. My goodness, this is a

37:18

point that Bowdoin Paul made. You

37:20

need a serious theory of retroactivity to say

37:22

that Section 3 implicitly repealed the First Amendment,

37:24

at least in part. I

37:27

can point to Clement V. Landingham, who was a

37:29

member of Congress who rabble-roused. He was from Ohio,

37:31

but he opposed the Civil War. And

37:34

he engaged in free speech. And there's some evidence

37:36

that speech was protected. If

37:38

there's some argument that the First Amendment was repealed,

37:41

it might have been discussed in the Landingham proceedings

37:43

if it wasn't. So I'm going to be very

37:45

hesitant to say that the Fourth Amendment repeals the

37:47

First Amendment implicitly. I think that's a very tricky

37:52

and risky argument to make. Another

37:54

beat on how the U.S. Supreme Court might

37:56

resolve this question, Would it be

37:59

plausible? For civil Libertarian,

38:01

just as to hold that the

38:03

Brandenburg Standard applies that you can't

38:05

be held liable for engaging in

38:07

his direction under section three for

38:10

protected speech. And therefore

38:12

the A Colorado Supreme Court was wrong to

38:14

disqualify him and and what are the procedures

38:16

for. Taking. Account of his first mm

38:18

and arguments in the course the section Three proceedings.

38:21

Rebel forces. I don't think that Section

38:23

Three repealed the first amendment. I just

38:25

said that it modified it just as

38:27

it modified all of the prior constitutional

38:29

amendments are, in the sense, amending. What?

38:32

Came before. I'm secondly

38:34

of Brandenburg as a criminal

38:36

case. right? And of course

38:38

we We think about that sort of

38:41

sending someone to prison. For. Their

38:43

speeds. That's a very, very serious matter

38:45

and there should be a very high

38:47

standard to do that. Here. We

38:49

are not sending Donald Trump to

38:51

prison in this. In this proceeding

38:53

with we are looking simply to

38:56

say whether he's disqualified from serving

38:58

as President again. So. The. Same

39:00

kinds of concerns that are behind Brandenburg

39:02

don't quite work in this context. Now

39:05

that said, that doesn't mean you necessarily

39:07

need to. Throw out the

39:09

Brandenburg standard could simply be to understand

39:11

it. Filtered. Through

39:13

Sex and Three and the fact that

39:15

it's a civil proceedings and as civil

39:18

remedy rather than a criminal one. I'm.

39:21

Ill. Beyond that mean

39:24

your I know. It's

39:26

at I wasn't I wasn't there on January

39:28

six fried. So I mean I'm a little

39:30

hesitant to sort of offer a direct opinion

39:33

about kind of what what, what happened and

39:35

what didn't happen. On. But

39:37

I mean I think that the Colorado

39:39

Records analysis of that was was sound.

39:42

And I don't know that that's going

39:44

to be the thing that's going into

39:46

trouble the court the most. I mean,

39:48

I would say that. You. Know

39:51

eat because the First Amendment is

39:53

more familiar terrain Them. I

39:55

would be. sort of

39:57

thinking that they will spend a

40:00

good deal of the argument talking about

40:02

the issues that Josh has flagged. Because

40:04

I just think that they're

40:06

just gonna be, that's more in your

40:08

wheelhouse, to put it a certain way.

40:12

But do I think that that is

40:14

something that should lead to

40:16

a finding that Trump did not engage

40:19

in insurrection? No, I don't.

40:21

And I do think, by the way, that specific

40:23

intent was satisfied. The

40:25

trial court pointed to the fact

40:27

of the, not only things that

40:29

occurred before the speech on

40:31

January 6th, but also the things that occurred

40:34

afterwards, namely the lack of action once

40:36

the violence began for several

40:39

hours to prevent

40:41

the violence from continuing. And that

40:43

that was evidence of intent. So

40:46

I think that standard was satisfied based on

40:48

the factual findings made. Josh,

40:51

might the justices examine

40:54

who should make this decision?

40:56

State election officials,

40:58

state courts, or whether it's

41:01

a determination that only the US Supreme Court

41:04

can make. And does it make

41:06

sense to have different states come to different conclusions

41:08

about whether or not President

41:10

Trump engaged in insurrection? Or

41:13

does the US Supreme Court, if it gets to this question,

41:15

have to decide it for the whole country? Right,

41:18

putting aside the question about self-execution,

41:21

if we are electing a president on

41:23

a national vote, and all

41:25

50 states impose different procedures before

41:29

disqualifying the president, we are in a

41:31

very, very dangerous place. So just to

41:33

draw a contrast, the Colorado trial

41:36

court that Gerard testified in held a full

41:38

hearing for a week. It was a pretty

41:40

elaborate proceeding. In Maine, you

41:42

had an elected partisan secretary of state

41:45

who has tweeted critically of Trump before,

41:47

had a hearing that lasted just

41:49

about a day. He said, yeah, well, Colorado said, right?

41:52

And you might imagine other states have even

41:54

less process. So

41:57

for better or worse, this case comes to the

41:59

Supreme Court now. with a full record

42:01

on which the court can rule. And

42:04

whatever the court does here, I hope and

42:06

pray that the court resolves

42:08

this authoritatively. Seth

42:10

and I make this point in our brief, we think

42:12

the self execution point is correct. And

42:15

the court rules on self execution grounds and

42:17

all the state litigation ends. But

42:19

Jeff, this doesn't end the crisis, right?

42:22

Why? January 6th, 2025, we

42:25

have a joint session of Congress

42:29

and it could be that a Congress

42:31

with a democratic vote says we will

42:33

determine that Trump is not qualified. And

42:36

any electoral votes for Donald Trump were not

42:38

given in a regular fashion. That's the statute

42:40

of use is regularly given. And

42:43

you can imagine they disqualified Trump, and

42:45

this actually isn't clear, would either make that the

42:48

Republican vice president becomes president

42:51

because no president qualified, or

42:53

you could have what's called a contingency election where

42:55

Biden, maybe Joe Manchin, could become president.

42:57

Crazy things can happen. I

43:00

saw a recent poll that said 80% of

43:02

Democrats think Trump should not be qualified. So

43:04

if the Supreme Court kicks this case in

43:06

any sort of procedural grounds, it just leaves

43:08

chaos for a year that Trump wins a

43:10

nomination, which looks pretty likely. And

43:13

if Trump wins a general election, which is possible, the

43:15

polls show he might, then we could

43:17

have a democratic control Congress saying no, for the sake of the

43:19

republic, we do not want Trump to be president. And

43:22

I don't know that an appeal could lie from

43:24

the joint session of Congress, the Supreme Court. I'm not

43:26

sure, maybe it can, maybe it can't, I don't know.

43:29

But it will be absolute chaos

43:32

if that happens. So I hope that whatever the court

43:34

does, they resolve this issue in the merits. Say that

43:37

the president's not an officer of the United States, their presidency

43:39

is not an office. There was no

43:41

insurrection, there's a brand new work defense. Mere

43:44

of the liberals will have that argument appeal to them. Something,

43:47

don't actually rule on self execution.

43:50

Don't rule that, oh, this only kicks in when the

43:52

president holds office, oh, don't do it now. This is

43:54

a brief by a Republican Senate committee. Rule

43:57

the issue, or, give your,

44:00

Gerard was looking for it and say, knock

44:02

them off the ballot, right? Own

44:04

your decision now, do it now, and

44:06

let the people pick

44:09

a different candidate. But a middle ground, which is

44:11

something that I know the chief often likes, I

44:14

think will be very, very dangerous here, and I don't

44:16

think it'll be appealing to the court. Well,

44:19

the middle ground brings us to the

44:21

sixth of the issues that Gerard identified

44:24

at the beginning of the show. Is Section

44:26

3 justiciable? The Supreme Court has, in a

44:30

series of cases, held that there is

44:32

a political question doctrine that

44:34

says that when a decision is textually

44:37

committed to another branch of government, and

44:39

when it raises pragmatic or prudential considerations

44:41

like calling the courts legitimacy into question

44:44

or risking chaos, then

44:47

judges should refuse to decide

44:49

it at all. Gerard,

44:51

tell us about what

44:53

the argument is in this case about

44:56

whether or not this is a political question

44:58

and whether you think some justices might accept

45:01

that argument. Well,

45:03

I'm worried that they might, and

45:05

for the reasons largely that Josh

45:08

has stated. So the inclination not

45:10

to decide this case might

45:13

lead them to say, hey, why don't you come

45:15

back to us after the Republican Convention if Trump

45:17

is a nominee, or why don't you come back

45:19

to us after November if Trump wins, because maybe

45:21

neither of those things or one of those things

45:23

won't happen. Now, one

45:26

way they could get to that, which we haven't

45:28

discussed so far, is the argument that, well, maybe

45:30

you can't hold office under Section 3, but you

45:32

can run for office. So

45:35

the running part, you have to let

45:37

everybody run. And so

45:39

then you can't really resolve it until the election

45:42

is over. Now, I

45:44

can understand why somebody might find

45:46

that appealing, but if

45:48

we hadn't have had January 6th, 2021, we

45:53

might say, well, hey, let the joint

45:55

session do it. That seems fine. That's

45:57

something the 12th Amendment seems to contemplate.

46:00

And so on but now we've

46:02

seen it in action once and we've seen

46:04

how bad that can become and it would

46:06

be worse the next time so

46:09

to say either It's

46:12

a political question only Congress can decide

46:14

it in the joint session or

46:17

to say Look, we can't

46:19

do anything about it until after the

46:21

election so there's like this

46:23

very narrow time window between November

46:25

and January that Where

46:27

this will all get resolved somehow Or

46:31

else the joint session has to resolve it. Those

46:34

are both alternatives that are going to be very

46:36

unattractive Because of

46:38

what occurred on January 6 of 2021

46:42

so well, I think

46:44

there's you know, there is an Applausible argument

46:46

for the kind of idea of you

46:48

can run for office, but you can't

46:50

hold office I just think that's unworkable

46:52

and Looks very different

46:55

frankly now than it would have looked

46:57

in 2019, you know if we had been having

46:59

this conversation so I

47:01

I I certainly hope that they won't do

47:03

that and I would add that I hope

47:05

that you don't get a situation even where

47:08

say There's just a

47:10

concurring opinion that forms

47:13

the fifth vote that says that

47:15

Because you could just have one or two

47:17

of them saying that and that might lead to

47:20

us all being back here in

47:23

November December or whatever kind

47:25

of discussing this all over again And I just

47:27

think that that's not where we need to go.

47:29

We need to have this resolved now It

47:33

is significant that both of you agree that the court

47:35

should resolve this substantively one way or the other and

47:37

not Kick it down the road Josh

47:41

talk us through the options

47:43

if President Trump Wins

47:46

the nomination and this goes to the Congress

47:49

to count the electoral votes What does

47:51

the electoral count act say about? raising

47:53

objections and Don't the house

47:56

and Senate both have to agree to disqualify

47:58

someone and since they're in jail different

48:00

hands, wouldn't that mean that he would not be

48:02

disqualified in the counting or how could this

48:04

play out? It's going

48:06

to be wild, as they say. The

48:09

electoral count act was modified in the last year

48:11

or so. And there's a key

48:14

phrase, objections can be

48:16

raised if a vote is not regularly

48:18

given. That's a key word, regularly given.

48:21

It used to be that if one

48:23

senator and one representative raised objection, that's

48:25

enough. Now the threshold is

48:27

higher. If a fifth of each

48:30

house objects to a vote, then

48:33

the joint session breaks up and they each go to

48:35

their respective houses. And they vote.

48:39

And if a majority of each

48:41

house rejects an electoral vote, then

48:44

the vote's not counted. And

48:47

if a majority of the house

48:49

and majority of the Senate decides that Trump's

48:52

not disqualified, they can vote

48:54

to reject every single electoral vote in favor

48:56

of Trump. Now what happens then,

48:58

again, I don't know, one or two

49:01

things can happen. One, they can say that well,

49:04

the president is not qualified. So maybe

49:06

the Republican vice president takes office. Or

49:08

two, if no candidate receives a

49:11

majority of electoral votes, then they can have what's

49:13

called a contingency election, in

49:15

which someone in the top three can actually be

49:17

elected. And Trump's not it. It could be Biden,

49:19

maybe Joe Manchin, who gets a

49:21

single electoral vote somewhere, which I don't think

49:23

he will, but he could. Maybe West Virginia,

49:25

I don't know. And then we

49:28

have just absolute insanity. If

49:31

you think there were allegations at the 2020

49:33

election was about stopping the steal, which again,

49:35

I think is nonsense. This

49:38

is reviewed by a substantial majority of Americans

49:40

as stealing their votes. And even

49:42

if it doesn't happen, the spectrum of happening, the

49:44

threat of it happening, I think will be destabilizing

49:46

ways that we can't fully understand. So I was

49:49

kind of shocked to see that the Republican

49:52

Senate Committee said, oh, yeah, don't decide this

49:54

now, wait till he actually gets elected, then

49:56

decide it. That's just playing with, you know,

49:58

a loaded gun to quote. Justice Jackson, right?

50:02

The court should resolve this now, whatever it

50:04

is, give us a ruling, authoritative resolution, and

50:07

let us move on with our lives. We

50:09

can't, Gerard and I are getting

50:11

older and are old age. We can't deal with this another year.

50:13

It'll just be, I'll just let you

50:15

hear it through our over the time we're done, if

50:18

that's we get another year. Well,

50:21

it'll give us a lot to podcast about, no

50:23

question about that. Gerard, since

50:25

the House and Senate have to agree

50:28

to disqualify a candidate under

50:30

Section 3, isn't President Trump

50:32

safe if he wins the

50:34

Electoral College, since the House won't vote

50:36

to disqualify him and take us through

50:38

the various scenarios that might occur if

50:41

the Supreme Court kicks this down the road? Well,

50:44

first of all, he wouldn't necessarily be safe

50:46

because we don't know what the Congress will

50:48

look like in January, depends on how the

50:50

congressional elections go this fall, so who's

50:52

to know? Second is,

50:55

I can imagine, I guess, in

50:57

that scenario that the day after inauguration

50:59

day, there would be a whole lot of lawsuits

51:01

filed trying to say in some sense, Donald

51:04

Trump's not the real president. So

51:06

whatever he did, it's not lawful.

51:09

And that will either

51:11

be a nuisance or cause real problems,

51:15

just depending on what that's

51:17

about and how seriously people

51:19

take it. One

51:22

scenario I was trying to think through, and I'm not

51:24

sure I have a good answer to this, is,

51:26

okay, for example, suppose you were to say,

51:29

well, he can run for office, he

51:31

can't hold office. So when exactly can

51:34

someone then bring a court challenge? Is

51:36

it like the day after election

51:39

day when they're gonna bring some contest

51:41

in a state that says he didn't

51:43

really win Florida because he's not eligible?

51:46

Is it like after the

51:48

electors have voted and then

51:50

somehow you're gonna challenge what

51:53

they did in

51:55

a couple of weeks between the electors

51:57

meeting and the joint session meeting? I'm

52:01

not really sure how that would work.

52:05

I mean, one possibility, I guess, is

52:07

you just have election

52:09

contests being filed the day after

52:12

election if he wins, saying, okay,

52:14

he can't be, he didn't really

52:16

win my state. And

52:18

then, I don't know, that has to get

52:20

kicked up somehow to the Supreme Court or

52:22

to a state Supreme Court. It's

52:27

just something we can't really handle. I

52:29

mean, I think that's the basic problem.

52:31

You know, it's not like Bush versus

52:33

Gore where, look, sometimes

52:35

elections are very close and you

52:38

have to have recounts and it's

52:40

too bad, but you just

52:42

got to do the best you can to resolve it. This

52:45

is not that kind of situation. And

52:48

I just don't think the system can

52:50

really take it on without

52:53

some very bad ramifications.

52:57

Josh, more thoughts on this

53:00

case compared to Bush v. Gore. In

53:03

Bush v. Gore, the court famously

53:05

or notoriously reached

53:08

a decision on pragmatic grounds that

53:10

it was more important to avoid

53:12

chaos of an extended recount than

53:15

to follow the text and original understanding

53:17

of the Constitution and came up with

53:19

a previously unrecognized right of non-arborative treatment

53:21

of voters to stop the

53:23

recount. Gerard has just said that the case for

53:25

chaos is much higher in this case than it

53:27

was in Bush v. Gore

53:30

and therefore for, do you

53:32

believe as a result that for pragmatic and

53:34

prudential as well as textualist reasons, the

53:36

court should rule definitively here?

53:38

Help us distinguish this case from Bush v.

53:40

Gore. Bush v.

53:42

Gore sort of came out of nowhere, right?

53:45

In the span of a few weeks, entire strands

53:47

of constitutional doctrine were sort of just made up

53:49

on the fly. It

53:52

was not the court's best work. In

53:54

fact, in Morgan's Harper last turn,

53:57

the court sort of cleaned up some of the vestiges from Bush

53:59

v. Gore. against score.

54:01

The insurrection case is a little

54:03

bit different, right? You know, there's not a lot

54:05

of scholarship on it, but Girard's written

54:08

on it, I've written about it, Kurt Laschle, Saul

54:10

Tillman, Bowdoin Paulson, a few others have written on

54:12

it, and I think

54:14

all the issues have been vetted. You know, I know

54:16

Girard's position, he knows mine, we have to argue each

54:19

other's position with our eyes closed. So

54:21

we have pretty good

54:24

arguments, I think, on both sides of the court, one through

54:26

one way or the other. But

54:28

the chaos argument, I think counsels in favor

54:30

of some sort of definitive ruling one way

54:32

or the other. And we're not just talking

54:34

about, you know, a couple hanging chads and

54:36

Boca Raton, which are my my grandparents lives,

54:39

right? We're

54:42

talking about a national election where the candidate can't be

54:44

written in. I mean, Trump has had a hard word

54:47

to write, if we can write in the word Trump,

54:49

you can't even write the guy's name on the ballot

54:51

if you want to. So

54:54

the court has a lot on its plate. I

54:56

think Girard made this point earlier, well, the arguments

54:58

go six hours, instead of granting on

55:00

maybe six or seven questions presented, they just had

55:02

one. If he disqualified, my goodness.

55:04

So there'll be a free for all and we'll

55:06

see, you know, we'll see what happens there. I

55:08

think there might be some wrangling or argument we'll

55:10

see about that. But

55:13

let's get a ruling. I don't

55:16

think we're at the stage where the Supreme Court

55:18

says Trump is off the ballot and then people,

55:20

you know, reject the

55:23

Supreme Court, put him on the ballot. Conversely, if the Supreme

55:25

Court says Trump could be on the ballot, I

55:27

hope and pray that the Democrats in Congress say, you know

55:30

what, we're going to follow the Supreme Court. They're

55:32

not gonna say, you know what, Mr. Roberts, you made your rule

55:34

and go enforce it. We're going to disqualify Trump. I mean, that

55:36

you want to talk about a

55:38

constitutional crisis, if that phrase is one, the

55:40

Supreme Court says that Trump is not disqualified

55:42

and the joint session of Congress says he

55:44

is disqualified. And then we have litigation

55:46

about this. You

55:49

know, for all the talk about legitimacy and

55:51

just Thomas's RV and everything else, this is

55:53

an actual crisis. This is something we really

55:55

have to be worried about. So I hope whatever

55:57

the court does that President

55:59

Biden said, and says, okay, I'm gonna do what Al

56:01

Gore did, accept the court's ruling and move on. It'll

56:04

be nice if the court has unanimous ruling. I think that

56:06

would be helpful. In fact, I think my officer position can

56:10

garner nine votes. It won't upset

56:12

any apple carts. The self-execution argument

56:14

is harder because there's some pre-shrunk

56:16

positions in what the 14th Amendment means and whether

56:18

you need legislation. But I think, I

56:21

think our position get nine votes and we'll see what

56:23

happens. Well, it's time

56:25

for closing thoughts and this really illuminating

56:27

and important discussion. Gerard,

56:30

in a paragraph, how should

56:32

the US Supreme Court resolve

56:35

this case? Walk us through the various arguments and

56:37

how the court should resolve it. Well,

56:39

the Supreme Court should affirm the Colorado Supreme Court.

56:42

If you go through the list of issues that

56:44

I outlined at the beginning, if

56:46

you go through, tick them off one

56:49

by one, the answer on each of

56:51

them is that section three is satisfied

56:53

in relation to what Donald Trump did.

56:56

Now, you get to the end and that

56:58

means you have to follow the logic of

57:00

that to its conclusion. Now, the

57:02

conclusion, it's a big deal. It's

57:05

unprecedented for a presidential candidate.

57:08

That's all true. But I think when

57:10

you work through the details and the facts of the

57:12

case, it becomes a more

57:14

compelling conclusion than if you simply just

57:16

look at it as like, oh,

57:19

how can the Supreme Court take someone off the

57:21

ballot like that? And my

57:24

hope is that through programs like this

57:26

and other things that will go along in the next

57:28

month, people will become

57:30

more and more aware of the issues. And

57:32

look, they're gonna reach their own conclusions. I

57:34

mean, I don't know that the Supreme Court

57:36

is gonna be unanimous on this. It's

57:41

hard for me to see

57:43

that happening, but they should

57:46

take the step that the Colorado Supreme

57:48

Court did and follow

57:50

what was, I think, a well-reasoned opinion.

57:53

And Josh, last word in this important

57:56

discussion is to you in a

57:58

paragraph, how should... the US Supreme Court

58:00

decide this case? The opposite of

58:02

what Gerard said. I'm

58:04

mostly joking. I

58:07

think this case is hard, right? I'm not gonna

58:09

come out here and say that this is a slam

58:12

dunk for or against Trump. I think there's some really

58:14

difficult questions. But the

58:16

interpretive principle, sort of what's been guiding me throughout

58:18

this process, is when you have a provision that

58:20

limits the franchise, you have a provision that says

58:23

that you can't vote on the account of your

58:25

choice, it should be interpreted with

58:27

an eye towards democracy,

58:29

right, to letting the people pick their leaders.

58:32

I know many people don't like Trump. That's

58:35

fine, right? But if

58:37

the American people decide to make Donald Trump

58:39

president, then we get the country we deserve,

58:41

right? That's what we get. And

58:43

I think the Supreme Court will not

58:45

stand in the way of that happening. And

58:48

Trump has to run the table. It's one of

58:50

every possible issue. If I'm even right about

58:52

one of my issues, then this case is over. And

58:54

I suspect one of those issues will be ground for resolving

58:57

this dispute. Gerard MacBioga

58:59

and Josh Blackman for educating We

59:01

The People listeners and the

59:03

people of the United States about the urgently

59:06

important constitutional stakes of this case,

59:09

thank you so much. Thank

59:11

you. Thank you, Jeff. Today's

59:15

episode was produced by Lana Ulrich, Bill

59:17

Pollack, and Samson Mastashari. It was engineered

59:19

by Bill Pollack. Research was

59:21

provided by Samson Mastashari, Cooper Smith,

59:23

and Yara DeRose. Please recommend

59:25

the show to friends, colleagues, or anyone anywhere

59:27

who is eager for a weekly

59:31

dose of constitutional illumination and

59:33

debate. Sign up for the

59:35

newsletter at constitutioncenter.org/connect. And

59:37

always remember that the National Constitution Center is

59:40

a private nonprofit. We rely on the generosity,

59:42

the passion, the engagement, and

59:44

the devotion to the constitution of people

59:46

like you from across the country who

59:49

are inspired by our nonpartisan mission. Support

59:52

it by becoming a member

59:54

at constitutioncenter.org/membership, or give

59:56

a donation of any amount to support our work,

59:58

including the podcast Constitution Center. What

1:00:02

a great way to begin the new year by

1:00:04

giving a donation of any amount, $5, $10 or

1:00:08

more to the NCC to show your

1:00:10

support for We The People. On

1:00:13

behalf of the National Constitution Center, I'm Jeffrey

1:00:15

Rosen.