Latest / The 47 Morning Update with Ben Ferguson / Defending Democracy: Trump WILL Win at the Supreme Court-Here's How & Why

Transcript

Defending Democracy: Trump WILL Win at the Supreme Court-Here's How & Why · The 47 Morning Update with Ben Ferguson

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