Advisory Opinions - Do Your Job ... SCOTUS

Episode Date: February 9, 2024

Sarah and David cover the oral argument at the Supreme Court regarding the Colorado Supreme Court’s decision to block Trump from the ballot in the state. The Agenda: —David’s unpleasant déjà vu —All the ways Colorado will lose —The textualist approach —What process is due? —Non-Mutual Collateral Estoppel —David responds to Justice Kagan —Griffin’s case —U.S. Term Limits, Inc. v. Thornton —The advocates Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgert. That's David French, and we're in the same room together. Yes, yes, we are in the same room in Miami. National Constitution Center retreat. One of my favorite events of the year. It's a nerd festival of all nerd festivals here. It's lawyers, legal journalists, law professors, judges for three days of law talk. And boy, is this going to be an interesting three days of law talk.

So we did our emergency pod yesterday on the DC Circuit's immunity decision. Today, we have promised to talk a lot about the Supreme Court argument. And I don't know about you, but I was tuned into C-SPAN this morning, and I really appreciated that C-SPAN did the hard work that I wasn't willing to, which is showing how long the line was this morning for people trying to get in. Not as long as I thought it would be. Really? I mean, it stretched the block of First Street and then turned the corner and stretched maybe two-thirds of that long block. I have a theory as to why. Because everyone thought it would be crazy? Everyone thought the Supreme Court is not going to knock Trump off the ballot.

Oh, the conclusion. Yeah. Yeah. So this is not like, I would bet you for the immunity argument, if it occurs, which it might not, might not have one, they might affirm the D.C. Circuit, but I would bet an immunity argument would be bigger. I think that from the beginning, there has been a sense of, well, even if this is, even if there are strong arguments, constitutional arguments for knocking them off the ballot, will the Supreme Court really do it? Will they really do it? And I just think there's been a sense that they won't really do it. All right. Well, we're going to talk about that argument. I want to tell you what we're not really going to talk about. We're going to save it for our next episode. Rob Herr, the special counsel looking into Biden's

classified documents, released a 388 page report about 15 minutes ago from when we started recording this. So as great as David and I are, we have not finished reading the report. Although I did read the executive summary. We couldn't start recording until I read that. Oh, I read the executive summary as well. And can we give a tiny little taste? Okay, go. Okay. So it's worse than I thought it would be, Sarah. Same. It's not as bad as Trump's conduct, although I don't think that anyone was anticipating that it would be. But there seems to be evidence of real intention there in removing some of these documents. And also the details about his memory lapses are very... Politically.

Politically. Not legally. Politically potentially significant. Yeah, I mean, legally, and this is what we'll spend most of our time talking about next time, is the willful retention of classified documents has a willfulness element to it.

There's a mens rea element, and that's why Rob Hur then was required to include all of the memory stuff. Right. And remember, this was a confidential report that's required statutorily, basically, for the special counsel to give a confidential report to the attorney general. It is then up to the attorney general what to do with that report. And I know y'all may think that just sounds too cute by half, that like, of course, the attorney general has to give it to Congress. And of course they have to release it publicly.

I will tell you as someone who has quite a bit of experience, maybe the most experience of anyone outside of government. There's probably a universe of two people, three people that could be. I mean, we all work together. Yeah, yeah.

You mean those people. I don't like of any other administration or something like um that i will just say there was real conversation about whether we would release that report publicly interesting yeah interesting in fact you'll be shocked that for a long time it was not going to get released publicly wow has that been reported or are we breaking news on this podcast? I'm probably breaking a little news. Well, one more reason.

Because we also have some new listeners today, no doubt, after the New Yorker profile. So new listeners, one more reason to listen to this podcast. Every now and then there will be some news that is broken. So next episode we'll break down willful retention. I've got a weird analogy for why, basically why everyone's upset. We're going to steel man everyone's anger for the next episode. Why the Biden folks are angry that stuff was included.

Why the Trump folks are angry that Biden wasn't charged. Right. All of it. Yep. We're going to channel everyone's anger and explain it all and explain, actually, I'm not going to explain why people shouldn't be angry. The Biden wasn't charged. Right. All of it. Yep. We're going to channel everyone's anger and explain it all and explain. Actually, I'm not going to explain why people shouldn't be angry. Right. I'll just explain all of it. That would be the hardest thing to steal man of all to me would be how why no one should be concerned. But also next time I'm going to ask you, Sarah,

to put on your political hat a little bit and talk about the political consequences of this. Yeah. A little grifter Sarah time. A little grifter Sarah time. All right. Grifter Sarah has been in the closet for many months at this point and she's been bored. Yeah. She needs to get out and move around a little bit. Yeah. Okay. So the other thing we're not going to get to talk about today is the Hawaii Supreme Court's decision that the Aloha state's values do not align with the Second Amendment. We'll get to that another time. Can I just say for a second that my book, okay, I had a prediction in my book. I had two scenarios in my books, a Cal exit and a Texas scenario. And the Cal exit scenario was in California, obviously, but it's, it's instigator was defying the United States government on a gun issue. And that's what Hawaii is doing.

Well, we'll talk about whether they are in fact defying or simply applying state law. Yeah. Okay. Okay. And then a quick clarification, um, from the last episode, because we got a lot of questions from our members about this. You know, it was a long DC Circuit opinion, and we skipped over the whole first part of the opinion, which was about why the DC Circuit was able to review this interlocutory. And that's going to be our word of the day today is interlocutory. It's actually going to be non-collateral, non-mutual collateralist stopple, which you're all just going to be wanting to talk about in your personal relationships.

But interlocutory is when you get to have an appeal while the whole thing's still pending. So like before your trial or, you know, in this case, right? Like he's been indicted, but he hasn't been to trial. This is an interlocutory appeal. It goes up in between the merits part of this. So we didn't actually talk about that whole part of the DC Circuit decision. And so that led to then some confusion or even some lawyers pointing out like, well, look, when you have a qualified immunity case, you don't get to hold the whole trial in the meantime.

You have to do that at the end. Yep. And maybe we should have spent more time on it. There's this case called Midland Asphalt. And there's some D.C. Circuit precedent on this as well. And basically what it's going to say is, and this is why we didn't get into it a ton, And this is why we didn't get into it a ton. If your rights are to not be within criminal process, are constitutionally based, like in the constitution,

then you get an interlocutory appeal. So it's not that Trump is being treated in any special manner. Any criminal defendant who is basing their immunity on a specific constitutional text, and again, I mean immunity here as being immune from criminal process, can have an interlocutory appeal like this. It's just not going to happen very often, which is what Midland Asphalt was all about. And to be fair about us, we did talk about this. We did a little. We did talk about it.

And you very specifically said when the injury is standing trial, that would be part of the injury, the constitutional injury. Constitutional injury of standing trial. Right. Not just like a statutory injury or I wouldn't enjoy it. Right. Constitutional injury of standing trial. Yes. And so this led to a little bit of confusion over why I was upset about the D.C. circuits weird when they're issuing the

mandate. So let me tell you what I'm not upset about. So first of all, I don't care whether the trial is stayed. But like if the Supreme Court says the trial is not stayed and it's moving forward, fine with me. But it can't be contingent on whether you seek en banc review. Either it's legally correct to move forward with the trial or it's not. And it shouldn't legally matter what type of review that you want to seek. And that's why I found it strange that a panel, remember, this is three judges who issued that order saying, if you try to get the other judges to weigh in on this, then the mandate is going to issue. So that's the part that I'm complaining about, not whether the trial should move forward. There's a legal answer to that, again, under Midland Asphalt or whatever else. Second,

it's not when the mandate issues that's the odd part. It's that it's quasi-punishment for seeking en banc review. I actually did find one other case where this happened in a different circuit uh and talked to some folks involved and i'll just say that like the other judges on that circuit were not amused by the panel trying to shield that so it's not unprecedented but very very very rare well and this raises, I think, an interesting thought about legal podcasting in general, because what we just talked about is important and of interest to nine people, which is a way a lot of cases are decided, actually, is you have important cases that are decided or markedly influenced by extremely esoteric issues that people's eyes will glaze over almost instantly when you start to explain

them. And yet they can be remarkably important. So when you're doing legal podcasting, it's very difficult to balance. Okay, how much time are we going to dive into this esoteric issue that is actually going to lose us 98.3% of the audience, but is important? We can't ignore it, obviously. So we got to deal with it. And sorry, sometimes it's brief and cursory. Okay. Now let's get to the main event, the entree. Oh gosh, okay. The Supreme Court had budgeted 80 minutes for this because they were gonna hear from three different advocates.

Trump's advocates, the voters who brought the case advocate, and the Colorado Solicitor General who was representing the Colorado Secretary of State. Budgeted 80 minutes. It actually only went for two hours and 15 minutes, which was shorter than I thought it was gonna and 15 minutes, which was shorter than I thought it was going to be. Yeah. A little shorter than I thought it was going to be. I have to say though, Sarah, the oral argument was, um, I had an unpleasant sense of deja vu in, in listening

to the oral argument because I was in a situation in a case once where I was trying to argue the application of a very broad provision of the law. It was written very broadly and the broad application of that provision was something that would favor my client. My client needed the broad application of the law. The law was broad and I walk up there and I start arguing. And the first thing I can tell is not one of the judges I was interacting with wanted the law to be broad. And so their entire focus was how do we narrow? How do we narrow?

And when I was listening to this argument, that is exactly what I thought was happening. From the word go, it was, wait a minute, this can't quite really mean what you're saying it means, because if it means what you're saying it means, that's really broad, and that could cause problems. And so the whole focus was, how do we narrow? Colorado, I mean, I'm guessing 9-0 maybe, 7-2 maybe, and we'll talk about what specific point, but it was very plain to me the court was not interested in a broad interpretation of Section 3. Nobody who listened to this oral argument thinks Colorado will win this or that Trump the court was not interested in a broad interpretation of section three. Nobody who listened to this oral argument thinks Colorado will win this or that Trump will be off the Colorado ballot. The two questions coming out are what will the vote be? I think you start from seven, two, and then you debate eight, one and nine, zero. And two,

what will the grounds be? Because that actually was, I think, hard to tell exactly where each justice was on each of the different arguments. Because as we've gone over every single argument against them. And there's a decent chance they didn't hit on any of them potentially, but here's what, here's what I, so we'll talk about those things, what the vote might be at the end, where we'll just run through some of the different arguments, but I have a theme that I want to discuss. Oh, please. This was a fascinating case, not because of the outcome, obviously, but because you had three different judicial philosophies all getting their moment in the sun and justices grappling with where they were on each one. You had textualism. That was going to be the is an officer different than an officer of the United States, for instance. You had originalism. Is this what the ratifiers of the 14th Amendment could have thought they were doing?

Right. And then you had consequentialism. Lots of consequentialism. But what's interesting about this is that, you know, when I've talked about the 3-3-3 court, that institutionalist axis, another way to think about it, like there's stare decisis, there's can lower court judges follow what you're trying to lay out for them. Consequentialism is one of those two. And so generally you had three justices, the three sort of most conservative justices who were also anti-consequentialist. Not today. Not today.

Oh no, not today. Alito asked almost a Fox News hypo at one point. Not today. that Biden sending money to Iran when Iran is a hostile foreign power. And Alito did a kind of Biden money to Iran kind of hypo as to whether that would be aiding or abetting enemies of, you know, providing aid or comfort to the enemies of the Constitution. And that's a incredibly, that is a purely consequentialist argument from a guy who wrote a Wall Street Journal op-ed basically saying, I'm not a consequentialist. I have colleagues who are consequentialists and I'm not a consequentialist. So.

I'll, I think I can defend why his point wasn't pure consequentialism, but let's table it for a moment. Okay. So first I want to read again for listeners what 14th Amendment Section 3 says. taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disabilities. So let's start on the textualist

side, David, because you and I, that's where we started on this podcast, on the textualist side. So there's a few things here. The person can't hold any office under the United States. So there's a question of whether that includes the presidency. And if they've previously taken an oath as an officer of the United States, that's going to be the next question of whether Donald Trump's oath as president counts for that. Then there's going to be engaged in insurrection. Was this an insurrection? Did he engage in it? And then it's going to be a lot of time on the but congress may by a vote of two-thirds of each house remove such a disability what does that actually tell us then about who gets to decide this question and when they get to decide it if congress can remove it and that's where my

consequentialist like maybe it's not so consequentialist to think about how this all is going to play out because it gets to the who gets to decide sort of what the consequences are might inform us on what that was supposed to mean. But again, getting to that a little bit later. So that's where you're going to start with the text purely. And I'll just say the most interesting argument that came out was that, you know, for instance, we know from one part of the Constitution that the Speaker Pro Tem and the Speaker of the House are officers. They're referred to that in the Constitution. But we also know from the commissioning clause of the Constitution that they're not officers of the United States. Now, look, there's one version

of this where you can marry those two, right? So there's officers. And then separately from that, there's officers of the United States. And that clearly the president is not an officer of the United States, even though he may be an officer in and of the United States, like around. There's another version, though, that I think anti-textualists would throw in our face about this, which is, or it's just that people didn't use the language as carefully as you think, so stop trying to make fetch happen. That's my argument, which is actually the normal way you do constitutional and statutory construction. The normal way you do it is that you interpret words according to their everyday meaning unless there is a specific provision of the relevant statute or constitutional section you're looking at that

redefines the word. And so that's the way you normally do law. But going into this, Sarah, I had a pretty simple construction here of how to evaluate it. You knew Donald Trump would be in trouble if dot, dot, dot, 90% of the conversation was about insurrection. Donald Trump is not in trouble if dot, dot, dot, 90% of the conversation is not about insurrection. And 99% of the conversation, even the stuff that was about insurrection was about the process of deciding if there was an insurrection. It wasn't about the actual events of January 6th much at all. And so what was interesting to me is it seemed to, and I'd love to hear if you agree on this, that essentially the court was saying a few things. There are a few themes that came out. Number one was, and this was a big theme, wait, the state government of Colorado cannot decide eligibility for the federal office of president.

So that if it's, sure, there might be some leeway for the state to apply the 14th Amendment Section 3 to state office holders. But here's a big question. Can the state settle the eligibility of a federal officer? So that was a big theme in the oral argument. Another big theme in the oral argument was also related to that as well and came out of Justice Jackson and it was, hold on, let's look at the office and officer language and that the president isn't actually listed here. And then ask, what was the purpose of the amendment? And was the purpose of the amendment actually really dealing with people at these lower offices? In other words, that was the problem, the immediate problem they were trying to deal with, people coming into state offices. And that was a Justice Jackson line of questioning. And then you had a whole line of questioning, Sarah, about something we talked a ton about, which is due process. What process determines it? And I feel like all of this is going to go towards the question of the self-executing. of the self-executing, that all of those are various ways of getting at an argument from the court that says, all these things we talked about, state versus federal, lower level versus

president, office versus office, all of this stuff, the way to settle it is for a Congress to enact legislation the way that it enacted legislation in, what, 1870 to do this. If they want to keep doing this, they have to enact more legislation. So I think all of that goes to the self-executing point, basically. I think that's right. But you skipped ahead a little bit here. I did, I did. Yeah, you just skipped everywhere. Sorry.

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point about the self-execution stuff. All three of them were asking about the process that Colorado followed, including, for instance, and this was more Alito's question, but it was following on what Kavanaugh and the chief had asked at various points. Okay, so Colorado has this hearing. They have a standard of evidence. They have expert witnesses. They include some evidence. They exclude other evidence, et cetera. Let's assume another state follows a different process, the different standard of evidence, different experts, et cetera. What would happen when then we as the Supreme Court have to basically give deference to that trial process and that fact finding? So what happens when each state we give deference to and their different processes, could we end up upholding Colorado, but striking down Maine because theirs was a different trial with different fact finding.

That can't be what the 14th Amendment was supposed to be. So that gets back to my consequentialist point. On the one hand, you can see that as a consequentialist argument, but it actually is more going to this almost quasi-originalist argument of like, based on those consequences, then let's now think about what this language was supposed to mean. I think you're channeling where their minds were. I think one of the issues that I have with that analysis, and this is something that as the argument was unfolding, rarely do I listen to an argument and I like want to dive into my phone and somehow teleport into the courtroom, like stand there and go, no, wait, hold on. This is going off the rails. So a big part of the question was, well, what processes do here? What processes do? And the weird thing about the questioning

was it was almost, there was this sense from the court that was like, who are we to decide what processes do? And I'm thinking, I'm wanting to yell, are you kidding me? You do this all the time. You know, one of Justice Barrett's most important cases prior to coming on the court, she didn't have a ton of cases that she decided coming on the court, but it was involving college sex assault, sex abuse cases, and what processes do. Like this is normal judicial stuff to decide what processes do. And the way it works in the 14th Amendment is you essentially say, here is a floor of a process.

This is the minimal process that's necessary to protect the liberty interest. And you can go beyond it. You can add more process, but there's a minimal floor. And the way you deal with the variability on the states is you have a minimal floor. They all have to have the minimal level of due process. So this is what courts decide all the time. And then the legal determination of whether there is an insurrection, the court does not have to give any deference to that legal determination at all

it it can give deference to finding it might be required to give deference to a finding a fact of did trump send a tweet or did trump say x or y but what those facts add up to legally they don't have to defer to the states david i'm so glad you said that because now we get to talk about non-mutual collateral estoppel. Oh, we were just marking time. That's right. So I'm so excited to introduce many of you for the first time to non-mutual collateral estoppel. We talked about estoppel last time, and I got a lot of cranky little notes from lawyers saying, of course, Jack Smith isn't estopped from arguing that. Like I said, I didn't say it was actual estoppel last time um and i got a lot of like cranky little notes from lawyers saying of course jack smith isn't a stop from arguing that like i said i didn't say it was actual estoppel i said it was estoppel e but now we're going to talk about real estoppel because david's right of course that the supreme court uh would not be bound per se but here's the question

the different states might be. And this gets to what Elena Kagan was saying. Remember I said we were starting from 7-2, y'all. This is why. Because Elena Kagan is pretty hot and bothered by this non-mutual collateral estoppel problem. So Colorado, for what it's worth, does not recognize non-mutual collateral estoppel, but lots of states do. Okay. So let's start with just collateral estoppel. That's where one party can't re-litigate an issue that was decided against that party in an earlier action. All right, does that make sense? Like you, you know, if you have 10 lawsuits and they're all about the same hit and run and you argue one thing and you lose that thing in one lawsuit,

you can't then go argue the exact same thing in the next lawsuit. That's not always true, but if there is a stoppel, collateral estoppel, then you are. Non-mutual collateral estoppel is when the one party who was not party to that previous lawsuit is now using it against a party who has already been decided against. All right. So why is this at all relevant? Because once this issue that there was an insurrection is decided against Trump in Colorado, if a state has non-mutual collateral estoppel, Trump can't relitigate the question of whether there was an insurrection in that state. And that's where Elena Kagan is going to come down and say, what the, now one state is deciding this for every state that has

non-mutual collateral estoppel. And as one of the other justices mentioned, I think it was the chief, you could have, it was the chief, you know, the red states are going to throw Biden off the ballot. The blue states are going to throw Trump off the ballot. And then we're going to have like seven states deciding this presidential election. That's some consequentialist stuff. You know what we're drifting towards? The give me an effing break territory. No, come on. Yes. What? Yes. Okay. Look, at some point, there were several points at this oral argument. I was like wanting to stand up and say, this is what you do, members of the Supreme Court. We have a Supreme Court case right now. The justices are looking at a factual record that is determined that

Donald Trump is an insurrectionist. They could affirm that. And you know what? Donald Trump's an insurrectionist. And so the problem that you have here with this non-mutual collateral stoppel, all of this stuff, is that it's acting like all of these state courts are the court of last resort, and they're not. The court of last resort on this is the Supreme Court of the United States of America, and it can decide what processes do. It can decide under these facts as found whether that constitutes insurrection. It can do all of this. It obviously doesn't want to, Sarah. It really, really doesn't want to, but this is their job. This is their job. This is what they do. But it's more complicated than that and maybe too

complicated to spend a lot more time on. But the argument is Colorado had this one sort of, not random, but one specific process. Correct. And it will now bind every other state that tries to, you know, throw Trump off the ballot. Trump will be bound by that if they have non-mutual collateral estoppel. And so Colorado is now getting to decide this. And the point that Elena Kagan was making, why do I keep calling her Elena Kagan? I don't know.

But Colorado's not deciding it. SCOTUS is. Hold on. Okay. Because, Hold on. Okay. Because hold on. Justice Kagan's point was surely the 14th Amendment Section 3 was not meant to empower a single state to decide a national issue like this. And she even, I will say, sounded a lot like me in saying the whole point of these post-Civil War amendments

was to strip states of power. And you're telling me that a single state through Section 3 of the 14th Amendment, it turns out, got wildly empowered to decide a national election? Gosh. Okay. Elena Kagan, sorry. Here's my response to you. You are channeling her. Here's my response to you. You are channeling her. No, what I would say is, look, it is very true that the 14th Amendment did strip a lot of power from the states, but because prior to the 14th Amendment, the Bill of Rights, for example, did not bind to the states. Prior to the 14th Amendment, the blessings of liberty extended by the Constitution really didn't limit the state's ability to oppress you violently, which they did through slavery, of course. So post-14th Amendment, it wasn't, the 14th Amendment wasn't really, here, let's eliminate power from states. That's one of

the effects. The 14th Amendment really was, let's extend the blessings of liberty to all American citizens at all levels of government. So whether it's dog catcher to Congress, you cannot violate the fundamental rights, the privileges or immunities of citizenship. You can't remove life, liberty, and property without due process. So I think that this idea of sort of reading the 14th Amendment through a state limitation is an incomplete way of viewing the 14th Amendment, which is much more about remaking the American Republic to fully extend the blessings of liberty. And as far as what role did the states have in enforcing the 14th Amendment? Every level of government that takes an oath of office to support, protect, and defend the Constitution doing exactly what they're supposed to do. And this non-mutual collateral estoppel argument is only interesting if there is no Supreme

Court and what we have is actually Colorado dictates Alabama and Alabama dictates Maine and Maine. But that's not what we would be looking at here. Okay. I want to talk about a couple of the arguments that the other side, that the Colorado side made. Right.

One, and I thought this was a relatively weak argument, but they kept coming back to it. And it was, don't worry about the consequences. The first was don't worry about the consequences. Right. Don't worry about the consequences

because this has been on the books for 150 years and it's all been fine. and it's never been used because that's how rare this is yeah so we don't need to worry about it because there's so few insurrections in the country that this can't be used that struck me as like they had not lived through the last 10 years in the united states of america that like maybe the reason it hasn't been used is because people hadn't gotten creative enough. Maybe they weren't litigious enough. Maybe, you know, there's a whole lot of reasons that I think people are finding new and interesting ways to get to the Supreme Court with creative bits.

And I don't think it's just that we haven't had any insurrections in 150 years by this definition. Was it Alito who responded to that? I think he was. Several of them did. Yeah. Basically by saying, well, there weren't any impeachments between Andrew Johnson and Bill Clinton. And then since Bill Clinton, we've had three impeachments. And so I do think, you know, I do think the parade of horribles argument, in other words, that, hey, people will try to knock Biden off the ballot or a future Democratic president or Republican president is correct. They will.

Yeah. Okay. But then their next argument was, the first one was don't think about the consequences. The next one was think about the other consequences. And this I did find pretty persuasive. And this was brought up in a amicus brief from the Foley, I was going to call it the Foley-Lardner amicus brief, but that's a law firm. It's the Foley-Ginsburg amicus brief. Because, right, my argument is, my argument has been that this is up to Congress. And that's what that last sentence means about Congress being able to remove the disability by two-thirds.

This says it's about holding office and then Congress can remove the disability, which means it's not about who can get on the ballot. Remember Colorado filed that the voters filed this in Colorado was deciding it before Trump had even filed to be on the ballot. How can Congress remove the disability when the person hasn't even filed to run for office in the state? That's crazy to me. So what this means is that, yeah, you have to wait until someone's elected, and then it's up to Congress to decide whether they are qualified, eligible rather, to be president. And in fact, we have a whole set of, you know, in the Constitution about what happens. If the president-elect is not eligible,

then it goes to the vice president-elect if he's eligible. If the vice president-elect is not eligible, then it goes to the vice president elect if he's eligible. If the vice president elect is not eligible, it's up to Congress to make rules what happens next. Therefore, they contemplate what happens if someone is elected who is actually not eligible to serve. Their pushback to that, and from this amicus brief, which again is pretty persuasive, is can you imagine what will happen? And it will happen. I agree with them. Donald Trump gets elected. Then, you know, the January 6th version of certifying the election. And all of the Democrats decide that they do not believe Donald Trump is eligible to be president. And so they vote that way. And like this creates a whole different type of chaos than that goes to Congress. Now,

my answer to that is, yep, but that's the chaos that the Constitution contemplated versus the chaos of not having anyone on the ballot. And David is now, this is the fun of being together, David is now Googling Electoral Count Act reform. But yeah, so David, I did want to get your thoughts on this other consequentialist point, the other side of the chaos. Yeah. So the reason why I was Googling electoral count act reform is I couldn't remember exactly the remaining grounds that exist for objecting on the next January 6th. Because remember- But surely it'll be if he's not eligible. I think that's a good grounds. I know. But see, that's the thing is, if you say it's not justiciable right now, okay, that Colorado doesn't have the power to do this and we're not going to address the insurrection.

Right. Doesn't end the issue. And it's a little like the whole Donald Trump, January 6th impeachment thing, right? They were like, no, he hasn't been charged with a crime, so we can't impeach him. And then after the impeachment's all done and over, now they're like, well, you can't charge him with a crime. He wasn't impeached. Right. Wait a second. You have to follow through on your principles here. I'm willing to follow through on my principles that they can say he's not eligible. That's their job. So here's my question. Does this reasoning, and tell me,

you know, because again, and appreciate listener feedback on this, definitely like want immediate Sarah feedback on this, but so here's my request for Sarah feedback. If the argument of the Trump team was, wait a minute, Congress can remove the disability at any time before he takes, if he wins, the Congress can remove the disability. So how can you disqualify him from a ballot if the time hasn't run out for Congress to remove the disability was an argument, was a key,

one of the big arguments team Trump was making. Isn't that just setting it up to say that, okay, Congress decides this, makes this eligibility determination on January, next January 6th. Yeah. Yes. That's exactly what I'm saying. Yeah. That that's the chaos. That is the bad consequence. There's bad consequences on both sides. So you

just have to pick which bad consequence you like or which one's less bad. And I'm picking mine. Or the one that is dictated by the text. Oh, I think I'm picking that one. Okay. We have other things to get through. Yeah. First on the state rights point that you're making on the 14th amendment, this was another argument that they made, again, again, the Colorado side, which, um, it's a real argument and one that I hadn't really, I don't think considered enough until I heard their, um, questions today, which is,

yeah, look, the states are empowered through article two to pick their electors. This was the whole thing at issue in the Moore case that was from last term. Now, what was at issue in the Moore case is whether it's only the state legislatures. But regardless, it certainly says the states. In fact, I will read it to you. Each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the whole number of senators and blah, blah, blah. Presidential electors, right? Says it's up to the state. whole number of senators and blah, blah, blah. Presidential electors, right? Says it's up to the state. So what the 14th Amendment is saying, they're not adding some additional qualification here. The states aren't concocting different standards. They're simply fulfilling their

duties to pick their electors and saying that this person can't be on the ballot because we don't think that they're eligible to be president. And that's how we're going to pick our electors based on this standard about insurrection, et cetera. Again, I was not persuaded by it, but it was a strong argument. I think it's a strong argument to say, okay, here is our, we know what the constitution says about eligibility. So we're going to have a state rule here, according to the flexibility given to us by the constitution, which says that state legislatures dictate the manner of choosing electors. We're going to say that you're going to be eligible to be on a primary ballot only if you are at that time eligible to be on a general election ballot or to hold office only at that time. I think that if a state enacted that as a sort of a general rule of ballot access and someone challenged that, they would lose, would be my guess. determine how we choose our electors and saying that we're not going to allow somebody who isn't

qualified to serve to be on a ballot is a permissible exercise of that discretion. Okay, so this brings us to the next fun point, which is precedent. So there is no binding Supreme Court precedent on this question. However, there are two cases that are highly relevant. One is on point. It's just not a Supreme Court case. This is Griffin's case that I want you to talk about. And the other one is term limits v. Thornton, which started getting called term limits during the oral argument. And then that got really confusing as term limits was being used both to refer to actual term limits and to a previous Supreme Court case called term limits. So we had to stop that at some point. But why don't you talk about Griffin's case, both what it was and also how it came up

with the argument? Yeah. So Griffin's case was talked about a ton at the argument. And if I was going into this beforehand, and I was going to say here, let's say I'm preparing and I'm Colorado's attorney, because everyone who listens to AO knows that I believe that Colorado's position on this is correct, or the Colorado Supreme Court position on this is correct. But what am I nervous about? Number one is Griffin's case. Absolutely number one. Why? No, of course, it's not a Supreme Court case. It is by a Supreme Court justice, I believe the chief justice, writing circuit. And it's not just important because this was a, it is a court precedent. It's not a Supreme Court precedent, but it's a court precedent authored by a Supreme Court

justice. And then also it triggered congressional action. So if I'm making the argument and I'm, and I'm Trump's attorney, my best argument, I believe, and Trump's attorney made this argument with Griffin's case very well, by the way, he did a very good job at this, was to say, look, the leading precedent is by a Supreme Court justice immediately after the Civil War, right in the heart of all of this, immediately after the ratification, and he says that there has to be congressional action here to make this effective. And so the basic facts of the case is a man was indicted and tried in a circuit court for Rockbridge County,

Virginia, for shooting with intent to kill. He was convicted, sentenced to confinement. But the court was presided over by a judge disqualified to hold office by the 14th Amendment. And so what do you do? What happens if someone is disqualified? They're holding an office that they're not qualified to hold according to the text of the amendment and they're issuing decisions that have force and effect and this was a problem with the capital peace era because one of the reasons for the section 3 of the 14th amendment is former confederates were already charging back into government and many of them never left they were just in there the whole time and so they already charging back into government and many of them never left.

They were just in there the whole time. And so they're charging back into government, making all kinds of decisions, governing the South. And so the question is, what do we, got to consequences. What happens if we say that all of their actions are void? It's a very consequentialist decision. actions are are void it's a very consequentialist decision extremely consequentialist so he basically says look um this is too much here here's a here's a segment here's a quote a construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither or neither in so great a degree unless of the terms of the instrument absolutely require such preference.

So that's a statement of judicial principle that is saying you have to consider consequences in the absence of absolute clarity. And so essentially what he's saying here is, look, it's just too much. It is too much. And so if you want to, if you want to do this, Congress, if you want, if you want this to be the rule, you're going to have to make it the rule. And that's essentially, and then Congress goes and creates rules immediately after Griffin's case. And so the argument is, hey, justices, everybody thought at the contemporaneous moment that Congress had to do something. Justice Chase thought so in Griffin's case, Congress thought so, and Congress essentially said, oh, okay, Justice Chase,

we'll do what you asked us to do. And so if you want to talk about sort of original public meaning, isn't this evidence of original public meaning right here? And I thought that was the single most persuasive line of argument on Trump's side. It's in fact what he dedicated his rebuttal to. So advocates reserve five minutes or so for rebuttal. And as he put it, if you overturn Griffin's case in any way, everything that Donald Trump did in his last two weeks in office will be challenged in court.

Everything that anyone did in the executive branch under Donald Trump's authority can be challenged in court, which is the exact reason why Griffin's case came out the way that it did, because it would have meant hundreds, I mean, thousands of actions taken by state officials who had served in the Confederacy and therefore were in violation of Section 3 of the 14th Amendment. Everything they did would then be undone, including things

that would be really hard to undo, right? And so he's like, look, the consequences of this are just insane. You can't overturn Griffin's case. And it's why Chief Justice Chase decided it that way in the first place, because that's just no way to run a railroad. Interestingly, of course, the laws that Congress passed in the wake of Griffin's case, they then repealed. It was a great question from the chief he was like i have a technical question um do you know why they repealed i know this was a great part and uh the answer from mitchell was uh no we can't figure it out either except they were cleaning up the code and a whole bunch of things got taken off the books and that's one of them and like but of course 2383 the crime of insurrection is still on the books. And of course, the punishment for that crime, there's jail time, there's a fine, but there's also disqualification from holding office. Justice Kavanaugh, very interested in that. Something that, of course, I'm very, very interested in as well when you get to that self-execution. Meaning, to your point, David, not only does Congress have to do something, they did do something. You just don't want to do that

thing because Donald Trump hasn't been charged with insurrection. He wasn't charged with incitement, et cetera, et cetera. Yeah. The interesting thing about 2383, it doesn't actually apply specifically to the universe of people that Section 3 is written for. That's correct. It just applies to everyone convicted of insurrection, regardless of whether they took a previous oath. Yes. And it was passed before Section 3 of the 14th Amendment. And the interesting thing about it is, we've talked about it, is that constitutional?

about it is, we've talked about it, is that constitutional? So if you have said, because section three of the 14th amendment is a constitutional qualification for president, 2383 is a statutory punishment for the violation of a statute. And doesn't this just get to the other precedent that I talked about? Term limits. Term limits. to the other precedent that I talked about. Term limits. Term limits. So this is actually a relatively recent case, 1995 U.S. term limits v. Thornton. And the idea was that all of these states had passed state laws basically creating term limits for congressmen, i.e. you get to serve two terms in Congress and then you are not eligible to be elected to Congress from this state. And it went to the U.S. Supreme Court.

It was a 5-4 decision, which is fascinating, where basically the majority of the court said states cannot create additional eligibility requirements outside of or in addition to what the U.S. Constitution already sets. Now, what's funny about this is who wrote the main dissent. That would be one Justice Thomas. It is ironic that the court bases today's decision on the right of the people to choose whom they may please to govern them. Under our Constitution, there is only one state whose people have the right to choose whom they may please to represent Arkansas in Congress. Nothing in the Constitution deprives the people of each state of the power to prescribe

eligibility requirements for the candidates who seek to represent them in Congress. The constitution is simply silent on this question and where the constitution is silent, it raises no bar to action by the states or the people. This becomes really relevant because then the question for the Trump side is what the states are basically doing is creating a new eligibility requirement because they're setting the standard for the 14th Amendment for Section 3 enforcement. And that's the new requirement because all the 14th Amendment says is holding office. And so then we had this whole fight in the oral argument about are they setting a new standard or is it just the same as someone i mean so it says the same thing about age and natural born citizen it talks about holding the

office it doesn't say anything about electing but we've all said that states can not put people on the ballot who aren't old enough interestingly justice Kagan comes to ask this question again to Colorado, basically saying like, you don't see any difference between the age thing and the section three of the 14th amendment? Person's like, nope, they're the same. And she's like, obviously there is because one of them has discretion in it and one of them doesn't. And again, when, I mean, Justice Kagan, there were probably three different points where it was clear where her vote at least was headed, if not already decided. This was certainly one of them when they lost her on the term limits of E. Norton.

This is another issue where I thought, hmm, in some of these distinctions, because the issue, in some of these distinctions, because the issue that section three of the 14th amendment is as categorical as the age restriction. You, if you're too young, you can't do this. You can't be president. If you are, um, if you engaged in an insurrection after previously taking an oath, you can't be president. These are categorical. I think the issue that one of the problems was, well, okay, what about, it's a categorical bar for which there might be more contention about the application of one than the other. It seems to be sort of the main distinction. So the age difference, a lot of people might say, well, who would ever argue about how old somebody is? That happens actually a lot. Well, and it happens specifically in the question of, is it 35 when they get elected? Is it 35 when say, well, who would ever argue about how old somebody is? That happens actually a lot.

Well, and it happens specifically in the question of, is it 35 when they get elected? Is it 35 when they take office? All of that in between. But here's what Justice Kagan said. It was like, and I think Justice Kavanaugh also, but look at the language here. Shall have engaged in insurrection. They don't set any standard for that. There's no elements of it, except if you look at 2383, 2383, right? 2383, yeah. So yeah, they're saying, look, it is different because we know what an age is. I don't know. I mean, if you have, let's just imagine a hypothetical that happens all the time in sports. Yeah.

All the time. I mean, the people who say no one ever fights about how old somebody is. Ha! You state who's deciding whether or not somebody goes on a ballot uh the state would have to have a process right i agree it's really messy actually to try to distinguish the different eligibilities but okay last thing, last thing, David. We didn't actually talk about the advocates themselves and some of their background, which is fun. So, Jonathan Mitchell

represented President Trump. He is a former Scalia clerk, former Solicitor General of Texas, and, of course, is probably best known for being the guy who came up with the Texas abortion

bounty hunter law. He's known for being the guy who came up with the Texas abortion bounty hunter law. He's known as being, is pugnacious the right word? Perhaps the most surprising thing that happened today was Jonathan Mitchell conceding several points and where his stronger arguments were. And well, that's actually our weaker argument. That was very un-Jonathan Mitchell-esque, which was fascinating and made his argument much, much stronger. Yeah. So he was in the position that lawyers sometimes find themselves in of starting to open your mouth and realizing immediately that they're with me. And so that is the biggest challenge when you are an oral advocate and they're with you is getting out of their way. And so you don't want to mess up their flow when you see that they're.

And so I thought it was very shrewd of him to concede some points on non-critical issues. So he never conceded a point on a critical issue, but he certainly conceded that secondary issues were secondary issues or secondary arguments were weaker arguments than his primary argument, which I thought was quite effective. But he was also in this position where it was screamingly obvious that they were with him. And there are challenges there. As I've said, I have seen, I have watched lawyers argue themselves out of the judge's good graces. I've seen it happen. It can happen. And he did a very good job of not letting that happen. Which would be a surprise to many people. I mean, again, and I'm, you know, I'm joking,

not joking, but you think back to John Sauer's argument at the DC circuit and John took sort of the most pugnacious position that he could take and wouldn't concede anything. Um, and a lot of people were like, well, Trump was in the audience. And you know, when you've got that as a client, I think this shows the other side of it. Jonathan Mitchell had the same client and he went into this argument wanting to win. Yeah. Yeah. And moving to the Colorado side, the argument for the respondents, they had the challenge of immediately opening their mouths and realizing, oh my gosh, they're all against me, or almost everyone is against me. And it was very interesting to see the back and or hear the back and forth between the attorney and Gorsuch. So Jason Murray was the attorney for these Colorado voters. Also fascinating background. He clerked for Judge Gorsuch on the 10th Circuit and then clerked for

Justice Elena Kagan at the Supreme Court. He went into private practice for about 10 years and then started his own boutique law firm in Colorado. And the day he started this boutique law firm, he filed this lawsuit. So this was basically the purpose of him leaving his law firm. It was fascinating if you knew the background that he had clerked for then Judge Gorsuch because Justice Gorsuch beat the crap out of him. Gorsuch because Justice Gorsuch beat the crap out of him. Yeah, that was one of the more difficult challenges to face, which is you're getting a hypo from Justice Gorsuch. You know where he's

going with this. And so there are sort of two ways to deal with it. One is to fight the hypo. In other words, to sort of try to challenge the applicability of the hypo, which is really difficult to do because if the judge is asking the hypothetical, they really want an answer to the hypothetical. So fighting the hypo is difficult. But it's also difficult to know if you give the honest answer to the hypo, you're going to help them make their case. And so it's very difficult.

hypo, you're going to help them make their case. And so it's very difficult. And the best way I know how to deal with this is to answer the hypo and then try to change the judge's mind on the consequences or the import of the answer. But it's all difficult. It's all difficult. Justice Gorsuch at one point saying, this is the last chance I'm going to give you. He was clearly running out of patience. Justice Alito, when he wouldn't answer his hypotheticals saying, you know, I get why you don't want to answer this, but it's not helpful when you don't answer it. You're not, you know, when you refuse to answer it or change the hypothetical. I think this is an interesting lesson actually for, uh, you know, young lawyers or future advocates. It may feel good to you to change it. So you're not conceding anything,

but you're not helping your case because the whole point was that they had this question and you're not answering it. And so even if the answer isn't good for you, like I think about the consequentialist argument, like, well, aren't we just going to have most of the states take one side or the other side off the ballot and then seven states are going to decide this question? That's not a great hypo for your side. But the answer isn't ignore the hypo. The answer is, you know what? That's a bad hypothetical from my side. You're right. That could happen based on the decision that we're asking you to make. But let me tell you the hypothetical if you decide the other way. And then you give them the consequences on the other side. There's always something that you

can do to make your case or else you wouldn't have brought the case in the first place. So don't ignore the hypo. Don't change the hypo. Keep the hypo. And even if that means conceding away something important, you've still got other arguments or else you wouldn't be here. You know, because a lot of the undercurrent here in this case was this is a big freaking deal. This is a huge freaking deal. You're asking us to make a major, major move. And I think the answer to that is yes, it's a big freaking deal. This is a big, this is a very broadly written provision and with a wide sweep. And that's all on purpose. Our job is to effectuate what this says. It is not to say, oh, I think that's too much.

And because if you look back in history, one of the things that was interesting to me is how Justice Jackson talked about, well, this is really about the worry about the states. No, this was a worry about states. This was a worry about federal government. This was a worry about states. This was a worry about federal government. This was a worry about the presidency. I mean, this was a worry. The country had just been through a horrific nightmare. And the last thing it wanted to do in this moment was to put in power the very people who'd caused the nightmare. That's the whole purpose of this. And so when you're dealing with this kind of provision, I think one of the answers, and it may not work, probably wouldn't work. You know,

oral arguments rarely change. They rarely change is to just confront it head on and say, yes, this is a very big deal. But you know what else is a really super big deal? An insurrection. very big deal. But you know what else is a really super big deal? An insurrection. And if you think that there is a clear, you know, going back to that language from Griffin's case, where it says, a construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, at mischief must never be preferred to a construction which will occasion neither. That's not your option here. I think that's the answer. I don't know if it worked. It would not work probably. But I think that's your best case. I found the least persuasive parts of his argument where he sort of editorialized about how bad Trump is, how bad the insurrection was, how bad January 6th was.

Like, we're not really here about that. Like, you need to argue the legal points. You have really interesting historical stuff on your side. You know, something that didn't come up in the whole argument was the amicus brief from Akeel Amar and his brother. By the way, I thought it was just a great brief. It stood out. It actually offered real value.

And it was about a historical vignette that had been largely forgotten that, you know, they argued was actually what section three of the 14th amendment was more about than the civil war itself was this guy who was sitting in office. I believe he was secretary of state Buchanan, Floyd, uh, and that Floyd was considered the Benedict Arnold of his day. Very different from those who fought for the Confederacy after the state seceded. He had taken an oath to support and uphold the Constitution and then while doing that, ignored his duties. And then that was considered the real betrayal. Different even from those who seceded and then fought for the Confederacy. Like those are the sort of historical facts in the weeds, legal stuff, you know,

make the argument about why officers and officers of the United States, you know, actually aren't different. Instead, he sort of, you know, tried to get out of that question as quickly as he could. I was like, no, no, no. This is actually where you want to spend your time. Instead of January 6th was really bad. I would have walked into that courtroom. And look, let me just say this. This is me being the worst form of Monday morning quarterback. Us. Us being.

It's like saying that when Jalen Hurts rolled out with three linebackers in hot pursuit, he think that Akhil Lamar brief was so interesting that I might have tried to see if a tailor could have made a suit that is just the brief. So I walk in so they could read the brief while I'm also talking. Because what was so interesting about it is they went back to this mostly forgotten chapter of American history immediately before the Civil War where people did what? They tried to block the peaceful transfer of power to Abraham Lincoln. And in that process, when they tried to block the peaceful transfer of power, they were engaging in acts that were just as insurrectionary, but ultimately less violent than January 6th. And it was an extremely interesting and persuasive brief. And I would have loved to have seen more, although in fairness,

he was not asked about substance that much. But you could have done, there's a very compelling story to tell even before you get to 1861 in the Confederacy, you can tell about Shays' Rebellion, Whiskey Rebellion, the effort to block Lincoln assuming power. There's a lot there, but they weren't interested in it. Sarah. And the only question about the insurrection itself

and whether this qualified as an insurrection, Jonathan Mitchell defined it as organized attempt to overthrow the American government that is violent. So those are the three elements. And I think it was Sotomayor who was like, so wait, just because this was chaotic, it has to be organized. So therefore it's not an insurrection, even though it was the violent attempt to overthrow the government. He's like, we're not conceding. We'll concede the violent part. We're not conceding the overthrow of the American government. But yeah, basically it has toceding. We'll concede the violent part. We're not conceding the overthrow of the American government.

But yeah, basically it has to be all three elements. It has to be organized. That's not going to fly. Like, that's not going to fly. So the Whiskey Rebellion wouldn't have been a rebellion until they actually formed a committee. That's right. Okay, and then the last lawyer was the Solicitor General of Colorado,

Shannon Stevenson. She played a very interesting role in this. She was representing basically the Secretary of State of Colorado, the government of Colorado who actually did the removing of Trump from the ballot. Very interesting tactic that she took. And you, I'm stealing this from you, David, but basically like, I'm just here to answer your questions. That's my only job is to tell you

how the process works in Colorado, what process we followed. We had a five-day hearing. Yep, it was on a very rush scale. Donald Trump got to bring whoever he wanted, except expert witnesses. But other than that, he didn't use all his time, et cetera. But yeah, no, just ask me what you think.

She didn't really take an advocate's position. No, she really didn't. It was actually interestingly effective in a way because she was an advocate, but it made it sound, she was so informational in her tone, she sounded authoritative, which is actually an interesting kind of persuasive tactic. Absolutely. To bring, to sort of present yourself as I'm not just some lawyer, I'm an authority and I am educating you.

So I'm not persuading you, I'm actually educating you. And when you're educated, of course, you'll come along to this point of view. It's an interesting and can be very effective persuasive tactic. All right. So with that, I think we've run through the argument. Is there anything that we've left out of your checklist? Nothing that we've left out. Although I, can I just have a pessimistic note? Oh, please. Okay. So I am not convinced that elements of the far left wouldn't under the right circumstance do exactly what the far right did on January 6th. Um, I mean, we've seen people try to storm the white house, right? I mean, right in front of

our eyes, we've seen that. Um, I don't think this will happen. I don't think this will happen, but I do not want an opinion that could lead to another January 6th, which is telling members of Congress, you have to block the apparent winner from assuming the presidency. And the big concern that I have coming out of this oral argument and along the lines of some of the things that we've talked about is will we have actually created a, will the effect of the Supreme Court opinion

be that punting this to Congress and Congress could do this all the way up to January 6th? And that makes me nervous. I will end on a timing note. All right, let's do it. So this is only the second time that the Supreme Court has heard oral argument on an emergency petition in the last like 50 plus years, as far as I'm aware. But the last time was three years ago, and it was the vaccine mandate case by husband of the pod. Husband of the pod. And it may be interesting to folks

to understand that timeline. The briefing timeline was almost exactly the same. Just a few weeks for each side as opposed to the much longer timeline you get on the merits docket. Then they held oral argument and the decision came out six days later. Yeah, I was just asked,

do you expect days or weeks? And I responded days. I don't know. Six days seems very short for this timeline. I think the vaccine mandate did feel a little more urgent given what was happening, but I think we're talking under two weeks. Interesting. Yeah. And this is a more complicated case. The more complicated case. And you've got, you know, on the flip side, though, Colorado said they needed to print their ballots already. Like we're past the time they wanted to print their ballots. And this is for the Republican primary. So on the one hand, it also doesn't matter one bit. But nevertheless, it does matter. Like it's not up to the Supreme Court to decide that the Republican primary is over. Yeah. Yeah. No, it's it's I'm expecting, you know, I think you're probably right. I'll have to revise from days to less than two weeks. But yeah, it's it's going to happen quickly. And, you know, I think we're going to see some movement from the court if if trump's

team doesn't go on bonk first on immunity we'll see some pretty quick movement from the court on immunity as well so but i will say this sarah today february 8th 2024 was a really good day for donald trump on two counts he He likely, almost certainly, is winning the disqualification case. And then the special counsel's report that we talked about at the top of the podcast is really not good for Joe Biden. It is really not good. And I think that that is a, this is if Donald Trump wins reelection, February 8th is going to be, go down in history as one of those dates,

sort of like the day that, whatever day it was when Comey released. July 4th, right? Yeah, and then October when he, yep. October 28th, roughly. Yeah, yeah. So this could go down as one of those moments. Turning point. Yeah.

A political turning point moment. Next time, then, we will be talking about both the politics and the law of the willful retention of classified documents. And David, will you commit right now to talking about American Nightmare? On Monday, yes. Okay, he's committed. I will. I'm committed.

Okay. I'm committed. You mean Tuesday, because we tape on Monday, but they get it Tuesday. Oh, sorry. Yes, Tuesday. Yes. All right, we're Yes. Tuesday. Yes. All right. We're in.

We're in.