Advisory Opinions - Indictment Watch: The Supreme Court Decides Whether States Can Disqualify Trump

Episode Date: March 5, 2024

The Supreme Court issued an unanimous decision on Monday dismissing efforts to block Trump from the Colorado ballot. Sarah and David review the ruling and then go on to  disagree about pretty much everything. Stay tuned for a feisty debate. The Agenda: -Colorado cannot remove Donald Trump from its ballot -SCOTUS not touching the "Did Donald Trump engage in insurrection or aiding the enemies of the United States?" question -Also not touching, "Is Trump an officer?" -5-4 ruling on who can enforce Section 3 of the 14th Amendment Show Notes: -Electoral Count Reform Act -Section 3 of the 14th Amendment -Colorado Supreme Court's Majority Opinion -Maine Secretary of State's original decision on removing Trump Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions, colon, Indictment colon emergency pod on the Colorado 14th Amendment Section 3 opinion, comma. Also, the Supreme Court taking the immunity case and Sarah's thoughts and feelings on DOJ election policy. OK, it's a it's a pod. It's a real pod. David, we're putting off our regular agenda for this episode. We're pushing it and we're going to do a bunch of Trump stuff. We're going to do the Colorado opinion that just came out from the Supreme Court.

We're also going to go back and talk about the timing of that immunity case that the Supreme Court accepted to hear in April and some of the critics of that decision, as well as what one of the special counsel said in the Florida classified documents case about DOJ's policy question mark around the 60 day window of elections and whether trials count for that policy. And David, we're going to have a lot of disagreement on this pod. This might be our most the most disagreement we've had in a podcast, I think. I don't think it's even close. Yeah. Like, yeah, this is far and away to finish. This is like going to be some feisty Sarah and David all within the context of our close, wonderful friendship. But it's going to get a little.

The temperature is going to rise a bit. So, David, let's start with the Supreme Court decision. The Supreme Court saying unanimously that Colorado cannot remove Donald Trump from the ballot using the 14th Amendment Section 3's insurrection clause. Nine justices saying that states do not have the power to remove federal candidates from their ballots, whether they engaged in insurrection or not, that that's just not up to the states. whether they engaged in insurrection or not, that that's just not up to the states. Now, from there, what they didn't decide, they didn't touch whether the president is a, quote, officer of the United States,

which is some of the language in section three, and they didn't touch whether Donald Trump, quote, engaged in insurrection or aided the enemies of the United States. From there, five of the justices went even further, saying only Congress through legislation can enforce Section 3 of the 14th Amendment. And that means that the judiciary can't enforce it and that you couldn't have a repeat January 6th where, for instance, Democrats

decline to certify the Electoral College votes after Donald Trump is elected, for instance. But on that, it was only 5-4, meaning four justices, Amy Coney Barrett and Justices Jackson, Sotomayor, and Kagan, declined to join that part. They wanted to just have the narrow decision that states can't do this and leave open how Congress could do it or potentially the federal judiciary. The first line of the concurrence by Sotomayor, Kagan and Jackson is, quoting, If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. End quote. Dobbs, Roberts, C.J. concurring in judgment. Um, yeah, that means Roberts wrote the PC.

And if you read it, it reads like Roberts. Yeah, that means Roberts wrote the PC. And if you read it, it reads like Roberts. It was also always most likely to be Roberts because remember when it's the senior most justice in the majority who assigns the case. So Roberts, obviously a nine zero would have assigned the case to himself. So for a lot of reasons,

I believe that Justice Roberts wrote the PC in this decision, but this little shade thrown in the concurrence, quoting him back to himself, sealed it for me. 100% it was Roberts. The other thing I thought was interesting overall about this, David, was that, you know, I've talked about the x-axis being the ideological axis for justices and the y-axis being this institutional axis for justices, and you've got to plot them along both axes. Well, in this case, you actually had a disagreement, I think, among the institutionalists of what the best institutional outcome was. Oftentimes, judicial minimalism is seen as an

institutional outcome, meaning you decide the narrowest question that you can because it will get the most number of justices on board. And obviously, in this case, the smallest question, could Colorado do this, had the most justices, nine of them. Interestingly, you had Justice Barrett taking that institutional position, the judicial minimalist position. But you had Roberts and Kavanaugh, the two other most institutional justices, wanting to decide that larger question of, well, then who does get to do it? Does Congress have to pass legislation, etc.? And I think that's because within that Y-axis, there's all sorts of things. There's judicial minimalism, but there's also consequentialism. And I think for the Chief Justice and Justice

Kavanaugh, potentially, they thought that it would be far better for the institution of the court. And maybe I should state this even more broadly, that it would be better for the country to resolve as much of this as possible so we don't just have more 14th Amendment Section 3 cases coming up over the next few months trying to get to the Supreme Court. Or, for instance, on January 6, 2025, which a bunch of Democratic House members, if Donald Trump were to get elected, refusing to certify the election, and that that was a very different institutional concern. And so this is one of those

exceptions to my rule, where the institutionalism actually split the institutionalists. And I found that really fascinating in reading it. Yeah, it is fascinating. And I would say, you know, after the oral argument, you and I, I think the only disagreement we had about the outcome was whether it'd be 9-0 or 8-1. Right. Whether Sotomayor would, because she was the only one who expressed any interest at all in the oral argument in actually disqualifying Trump. So the question, the suspense was on what basis was he going to be knocked off or on what basis was the Colorado Supreme Court going to be overruled? And for moral argument, there were two leading contenders. One was the president is not an officer, which as a holding would be, I think, textually problematic, but outside of the current context of dealing with Donald Trump

would be a very limited ruling. They went with the bigger ruling. And the bigger ruling is, essentially, you've got to have congressional action, specifically legislation, before you can enforce this provision of the Constitution against officeholder, people seeking federal office. And that's a big ruling because what it means essentially, in just plain English, as of right now in the United States of America, Section 3 of the 14th Amendment is not operative at all regarding federal candidates for federal office. As of this moment, this provision of the Constitution is not in force and effect applying to candidates for federal office unless Congress acts. Circling back to what you were arguing, what you were saying, Sarah, is from an institutionalist

perspective, essentially what the court is saying is this institution is not the one tasked with making this determination in the absence of Congress. And so, therefore, if your eyeballs are on us and we're the ones, no, your eyeballs are on the wrong institution. Your eyeballs should be on Congress. This is fundamentally Congress's job. Yeah, I think that's a fair way to put that, that among the Roberts, Kavanaugh, Barrett institutionalists, Barrett was thinking of the institutionalism, well, in a more narrow way about how the opinion itself would work, judicial minimalism. And Roberts and Kavanaugh were thinking more about all three branches of government and how to protect this institution vis-a-vis the other institutions, the other branches. And I would still argue the country as a whole. It will be bad for the country if we have three more 14th Amendment Section 3 cases. And this pretty much kiboshes all of those. Yeah. You know, it's interesting. There's an institutional argument that says, hey, this is not the role of our institution. And you put us under strain when

you put something on us that is not an intended to be honest. And that's sort of the the institutional side of the per curiam decision. There's also, you know, an institutional issue here where you're saying that I think that Barrett, where the concurrences come in, where they're saying essentially, wait, we went further than we had to. And one vision of institutionalism says you actually preserve the institution by not going any further than you have to. Correct. Those aren't the facts that were before you didn't get the arguments of all of that, that it's actually bad for the institution to decide more because you don't know what the next set of facts will be. So wait. Right, right, exactly, exactly.

Okay, well, given that, let's break down the opinion. And remember, part 2A was the 5-4 part, part 2B was the 9-0 unanimous part. So we'll start with the unanimous part and then we'll go back to the 5-4 section. I really enjoyed this because I felt personally vindicated, which is what really this whole podcast is about. My personal vindication.

Part 2b is specifically about why states cannot be the ones to make this decision. So just reading part of this. Such power over governance, however, does not extend to federal office holders and candidates because federal officers owe their existence and function to the united voice of the whole, not of a portion of the people. Powers over their election and qualifications must be specifically delegated to rather than reserved by the states. But nothing in the Constitution delegates to the states any power to enforce Section 3 against federal officeholders and candidates. As an initial matter, not even the respondents, Colorado, contend that the Constitution authorizes states to somehow remove sitting

federal officeholders who may be violating Section 3. Such a power would flout the principle that the Constitution guarantees the entire independence of the general government from any control by the respective states. Skipping ahead here, the respondents nonetheless maintain that states may enforce Section 3 against candidates for federal office, but the text of the 14th Amendment on its face does not affirmatively delegate such a power to the states. The terms of the amendment speak only to enforcement by Congress, which enjoys power to enforce the amendment through legislation pursuant to Section 5. This can hardly come as a surprise, given the substantive provisions of the amendment embody significant limitations on state authority. This is the part where I feel

vindicated, David. Stand by for vindication. Under the amendment, states cannot abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote. On the other hand, the 14th Amendment grants new powers to Congress to enforce provisions of the amendment against the states. It would be incongruous to read this particular amendment as granting the states the power, silently no less, to disqualify a candidate for federal office. Ah, indeed. Yeah, I agree with none of that. Like, it's like a textual.

It's so, I mean, I agree that you're totally vindicated in your prediction that this would be the grounds. But, well, I mean, come on. It's so illogical, Sarah. It's so illogical. But. It's so illogical. But anyway, I will continue. Yeah. The only other plausible Constitution source of such delegation are the elections and electors

clause, which authorize states to conduct and regulate congressional and presidential elections, respectively. But there is little reason to think that these clauses implicitly authorize the states to enforce Section three against federal officers, officeholders, and candidates, granting the states that authority would invert the 14th Amendment's rebalancing of federal and state power. The text reinforces these conclusions. This gets to the Congress can remove the disability by a two-thirds vote. Moving ahead, nor have respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the 14th Amendment.

Instead, it is Congress that has long given effect to Section 3 with respect to would-be existing federal officeholders. And here it is, the special y-axis institutional concern, the consequences of state enforcement, right? institutional concern, the consequences of state enforcement, right? Finally, state enforcement of Section 3, with respect to the presidency, would raise heightened concerns. Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations. Some states might allow a Section 3 challenge to succeed based on a preponderance of the evidence standard, while others might require a heightened showing.

Certain evidence, like the congressional report on which the lower courts relied here, might be admissible in some states, but inadmissible hearsay in others. Disqualification might be possible only through criminal prosecution, as opposed to expedited civil proceedings in particular states.

Indeed, in some states. Indeed, in some states, unlike Colorado or Maine, where the Secretary of State recently issued an order excluding former President Trump from the primary ballot, procedures for excluding an ineligible candidate from the ballot may not exist at all. The result could well be that a single candidate would be declared ineligible in some states, but not others, based on the same conduct and perhaps even the same factual record, the patchwork that would likely result from state enforcement would sever the direct link the framers found so critical between the national government and the people of the United States as a whole. Also vindicated. Well, that feels good. Yeah, and totally disagree with all of that. It's completely wrong. Like, I mean, the thing about this opinion, Sarah, is that nine justices and Sarah agreed with this part. Please continue. Judicial system, you do it, as McConnell said very explicitly at the moment. So that's what we got a little bit of hot potato going on here.

But let's just take the arguments one by one. Section 3 of the 14th Amendment says no person shall be a senator or representative or elector of president and vice president or hold any office, civil or, and we've gone through this. So it lays out the exclusion. And then it says, but Congress may, by a vote of two-thirds, remove such a disability. How can it, why, if Congress hasn't acted yet, there's no disability for Congress to remove. And so the interesting question here is, under this reasoning, this provision of the Constitution doesn't have force and effect unless Congress acts, but the actual provision of the Constitution says the disability exists unless Congress acts. I would like to answer that concern.

By all means. What the justices are saying is that under Section 5, and this is the 5-4 part, by the way. So the 5, the majority is saying under Section 5, and this is the 5-4 part, by the way, so the 5, the majority is saying, under Section 5, it was up to Congress to say how this was going to get enforced. Now, for instance, they could say everyone who has been convicted of insurrection is disqualified from holding federal office, which in fact is what one of the laws

passed by Congress indeed does say. Then what that amendment says is that Congress then by a majority or a two-thirds vote can remove that disability as in whatever enforcement provision they come up with. It is now constitutional that Congress can remove that disability regardless of what the statute says, as in Congress passes a statute to enforce Section 3, but it is constitutionally mandated that they be able to remove such a disability by a two-thirds vote. But okay, so Section 5 is not part of Section 3. Section 5 refers to the entire amendment

of which all of it is self-executing. All of it is self-executing, except this now, except for this now, which is very puzzling because all of the language and the whole rest of the amendment is mandatory. It is not conditional upon Congress acting. I don't think there's any real debate that it makes it better if Congress goes ahead and acts, that it is a preferable situation. It avoids a lot of the parade of horribles that Justice Alito raised.

But the question for me is not the question in the amendment from the text amendment to me is not. Is this is in the absence of congressional action? of congressional action. I guess the question I'm getting at is why is it that of the whole 14th Amendment, this is the one part that isn't effective until Congress passes legislation, when actually of the whole amendment, this is the only one that explicitly says it's effective unless Congress says it's not. So I think this brings us to then the disagreement. That's part 2A. And that's where it's going to split 5-4. I'll just read sort of the money line from part 2A and the majority, and then we'll go on to the concurrences, i.e. the ones that did not join part 2A. So it walks through, section three works by imposing on certain individuals a preventative

and severe penalty, disqualification from holding a wide array of offices, rather than by granting rights to all. It is therefore necessary, as Chief Justice Chase concluded, and the Colorado Supreme Court itself recognized, to ascertain what particular individuals are embraced by the provision. Chase went on to explain that to accomplish this ascertainment and assure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable. The Constitution empowers Congress to prescribe how those determinations should be made. That's only five justices joining that line. And that gets to your point, David. Now, interestingly, in Justice Barrett's concurrence, Justice Barrett is going to spend most of her time basically just saying, OK, I didn't join Part 2A, but don't focus on that.

Right. She says, I agree the states lack the power to enforce Section 3 against presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. The majority's choice of a different path leaves the remaining justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The court has settled a politically charged issue in the volatile season of a presidential election. Particularly in this circumstance, writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity. All nine justices agree on the outcome of this case. That is the message Americans should take home. I.e., I don't join Part 2A of the majority,

but I sure as heck don't join this concurrence that you're about to read from the other three justices. XOXO, Justice Barrett. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life

has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's auraframes.com. Use code advisory at checkout to save. Terms and conditions apply. Now, David, you get to the three, Sotomayor, Kagan, and Jackson, who are basically just going to complain that 2A is included at all

because it wasn't needed. But they're not going to say how they would decide those questions. And this gets to a, I don't know if it's a potential disagreement that we have or just a question mark that we have, which is if Part 2A had not been included,

what would have happened come January 6, 2025, if Trump were to be elected, i.e., is what Part 2A actually is doing work-wise saying that Democrats, for instance, can't decline to certify the election because of Section 3 of the 14th Amendment, because Congress has to pass legislation according to Part 2A, or is it doing some other work that I'm not clear on? Yeah, yeah. And that really is the interesting question, because what we're talking about here, you know, when you're looking at the Electoral Count Act, the interesting question was how much flexibility is left to reject a candidate under the reformed Electoral Count Act? Because

remember, originally, if you just took a one person from the House, one person from the Senate, and you could raise an objection that would have to be adjudicated by the House and Senate. And there weren't really guidelines. It was a incredibly vaguely written statute, a nightmare of a statute. But the argument was that the Trump used that ambiguity to try to argue that, hey, a majority of the House and Senate can just to try to argue that, hey, a majority of the House and Senate can just reject Biden and make Trump president, that they can just do it. And so the Electoral Count Act reform was instituted to say, no, no, no, no, no, that is not what you're allowed to do. And so there's a few things that are not relevant here as far as changes. You have to have a fifth of both chambers of the House and Senate to before you're going to

allow, you know, the objections to be heard. Objection has to be in writing. And this is the key part has to state the grounds for the objection, which can only be made if law if electors were not lawfully certified or the vote of one or more electors were not regularly given. And the bottom line on that is, Sarah, I think it's ambiguous enough language that if they didn't have the broader language in 2A, you might could have a situation where somebody says, wait, all this says is that Congress has to act. And on January 6th, or when the count is being certified, there is a grounds for an objection that they're not qualified for the presidency.

And the same way that they're not, they wouldn't be qualified if they were younger than 35 or not a natural born citizen. And so the question was, wait a minute, if the only thing is, can Congress act? You just need Congress to act. Well, then couldn't you have a rerun of all of the controversy leading up to January 6th? And that's where I think that language you're talking about, Sarah, seems to indicate, no, no, no, no, no. What they need to do is pass enabling legislation, that it's not just Congress acting, that there needs to be enabling legislation.

And unfortunately, the opinion is not super clear on that. Oddly, the concurrence is more clear about what they think the majority means. So reading from that Sotomayor, Kagan, Jackson concurrence. In a case involving no federal action whatsoever, the court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to ascertain what particular individuals should be disqualified. And then they walk through why that's wrong. To start, nothing in Section 3's text supports the majority's view of how federal disqualification efforts must operate. Section 3 simply states

that no person shall hold certain positions and offices if they are oath-breaking insurrectionists. Similarly, nothing else in the rest of the 14th Amendment supports the majority's view. Section 5 gives Congress the power to enforce the amendment by appropriate legislation. Remedial legislation of any kind, however, is not required. To your point, David, all the Reconstruction Amendments, including the Due Process and Equal Protection Guarantees and the Prohibition of Slavery, are self-executing, meaning they do not depend on legislation. Similarly, other constitutional rules of disqualification, like the two-term limit on the presidency, do not require implementing legislation, nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3. a special rule for the insurrection disability in Section 3. The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to

legislation enacted for that purpose. In fact, they say, the text cuts the opposite way. Section 3 provides that when an oath-breaking insurrectionist is disqualified, Congress may, by a vote of two thirds of each house, remove such disability. It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3's operation by repealing or just declining to pass implementing legislation. Here's the problem, David. I hear that. And just from a basic standpoint, they did not need to reach this question. That's the part that Justice Barrett is simply right about. And the three are simply right about. This was a question whether Colorado, a state, could enforce Section 3. And the answer to that is no. Why are we even messing around with what Congress has to do? They didn't need to. But I'm very unclear on what they, the four, would say Congress needs to do. It's self-enforcing, according to the three.

What would that mean in practice, other than Congress having to pass some legislation saying this person is disqualified, or perhaps your point, like not certifying the vote, maybe. I don't understand. Yeah, I'm with you. I think they were very effective in their critique of the majority opinion, but they left me completely stumped really as to why they signed on to the operative part of the PC opinion. So... Because either it's self-executing or it's not. And then it's just a question of who gets to execute it.

But if it's self-executing, then there shouldn't be a question of who gets to execute it. It's self-executing. But if they agree it's not self-executing for the states, but it is self-executing for Congress, I don't know what that means, except that Congress would have to legislate. Yeah.

Congress can't act otherwise. It doesn't have any action beyond legislation. But it seems as if they might have been leaving open the possibility that you could have some sort of governmental action short of Congress, that it maybe if someone filed a federal lawsuit in federal court, that in other words, if the federal judiciary is doing it as opposed to a state judiciary, which would seem not necessarily supported by the text, this is what really confused me about it, because it seemed to me that they were absolutely correct in their critique of the majority's reasoning that this was not self-executing. But then provide, and I just don't see how their reasoning fits with their agreement with the majority on the bottom line conclusion. And that's where I'm, I guess I am, I'm stumped

because I can read the section of the PC that they signed on to, and I can also read their concurrence, and the two seem incompatible to me. And so that's what stumps me about this concurrence. Well, here we are. I mean, just get ready. We're going to have some J6ers running for Congress now, Sarah, and ain't nothing anybody can do about it. I don't think that's true. Unless Congress does it.

Unless Congress passes legislation. I guess we'll see. Or maybe the Supreme Court will suddenly decide after Donald Trump is gone, wait a minute, Section 3 actually does exist again suddenly. But yeah, it's a very, I mean, you nailed it. You nailed the reasoning. I just, I just did. It's just does, it's not logical to me. It just doesn't make sense that everything there is self-executing except for the one provision that says that Congress has to act for it not to happen. Well, there we are. Unanimous decision by the Supreme Court. I win.

Moving on, we talked about the Supreme Court's decision to take up the immunity case, whether a former president is immune from criminal prosecutions for official acts he took while in office. And we talked about sort of, you know, the Supreme Court decides questions, not cases, how there's a very good chance that they're taking this because the D.C. Circuit decision was just wrong on the difference between, for instance, ministerial and discretionary acts. And they're going to have to fix that. And probably as a result, this case gets sent back down to determine whether all of the acts that Donald Trump has been charged with are not immune from prosecution. As in, they're going to say there's some core part

that is immune and there's a much larger part that's not immune from criminal prosecution, unlike in the civil context where all official acts are immune from civil suit. But David, then there were a lot of other people reacting, and I wanted to react to their reactions. Please, please, by all means. A few areas. One, just the vitriol and anger toward the Supreme Court that they took this case and that they're the reason that Donald Trump won't stand trial before the election is galling to me. Because first of all, the Supreme Court absolutely should have taken this case.

Jack Smith, the special counsel, said so himself. So in terms of just them taking it, please. Every party agreed that they needed to resolve this case and that it could only really be resolved by the Supreme Court when you're dealing with a question of such national importance. In fact, it's one of the factors for granting certiorari, a question of national importance. Okay. But then there are people who are like, no, no, no, fine.

Maybe they should have taken it. But Jack Smith wanted them to take it before the D.C. Circuit ruled on it, like skip the process and take it before the D.C. Circuit ruled on it, like skip the process and take it that way. That would have basically saved two and a half, three months. OK, two things to that. One, I don't think that would have made any difference to the overall problem. This gets to the question of how long the trial itself would last and DOJ's quote unquote policy that we'll talk about in a moment. But the second reason is that that's not where the main delay came from. If you're really going to be mad at the Supreme Court, why aren't you mad at DOJ? Why

aren't you mad at Jack Smith? Why aren't you mad at Judge Chutkin? Literally everyone else in this process took a lot longer than two and a half months with their little pieces of this. DOJ, of course, remember, took two and a half years to bring an indictment. Judge Chutkan took, I believe, three, six months to rule on this motion to begin with. The D.C. Circuit, of course, took three months. Like, the Supreme Court's

the problem here? Don't just get mad at the people who are left holding the ball at the end. I, of course, think they should have followed regular process. You don't skip the D.C. Circuit because of something that is not legally relevant. is not legally relevant that Donald Trump is running for office to the question of whether he is crimin attorneys and former senior level folks at the Department of Justice. There's a lot of disagreement on two things. One, how long this trial could potentially last, in part because the trial here were including jury selection, for instance. Jury selection could be really miserable in this case. Oh, gosh, yes. It could take a very, very long time.

In addition, Donald Trump, if he wanted to, could try to call 45 witnesses or something. Maybe Judge Chukin tries to limit that, but that's just opening up options on appeal, that he wasn't allowed to present sort of a full defense. And in fact, she didn't let him bring witnesses that he wanted to bring. Judges do that. Don't get me wrong. It's not that that's would be totally out of the course. Of course they can. But it just opens up the possibility of an appeal. But those

witnesses, the ones called by the prosecution and the defense, any of them could move to quash, say that they don't want to be witnesses or argue that they have some sort of privilege against being a witness because of what their roles were while Trump was president, for instance. Trump could try to assert executive privilege over some of that testimony. I mean, who knows? And then the actual trial itself, Jack Smith, the prosecution's presentation might be two or three weeks. Donald Trump's could be three plus weeks, plus that voir dire, plus all of the skirmishing. Yes, the trial could be under a month, but you also have to acknowledge this trial could be over three months. That then implicates this question over, can DOJ try a case that close to an election? So Jay Bratt, who is the special counsel,

you know, works for Jack Smith, he is the one dealing with the classified documents case down in Florida. In a hearing last week, he told that judge that, in fact, DOJ's policy does not implicate trials. And I was like, well, that's very interesting. And so I went and talked to a lot of people about this. And there's multiple camps. And I think it's worth considering all these camps because these are all people who were, in some sense, bound by this and don't even agree on what it necessarily means.

So first of all, there's a disagreement on whether this is even a policy. Is it a norm? Is it a guideline? Is it a guidance? on whether this is even a policy. Is it a norm? Is it a guideline?

Is it a guidance? So Loretta Lynch, April 11th, 2016, for instance, put out a memo in which she said, the department has a strong interest in the prosecution of election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process.

As department employees, however, we must be particularly sensitive to safeguarding the department's reputation for fairness, neutrality, and nonpartisanship. Simply put, politics must play no role in the decision of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting an election or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the department's mission and the principles of federal prosecution. Well, this is pretty interesting, David, because A, that memo would seem to limit it to only

certain types of crimes that are election related, as in that might pop up in the course of the campaign itself. And it pretty clearly talks about investigative steps. And so bucket number one, is this even a norm or a policy or a guideline? Like, does this even really exist? That's a point of some disagreement. exist. That's a point of some disagreement. Two, does it apply to all different types of crimes? Probably not. It seems, talking to some people, like rape and murder, this would simply not apply to the 60-day norm, so to speak. So the crime itself and what the crime is may mean that the guideline or policy doesn't actually adhere at all. And bucket number three is, does it apply to a trial or just investigative steps?

And this is where I think the most interesting disagreement was, because if you read it as the department has an interest in not affecting the outcome of an election, well, that would certainly apply to a trial. Or do you read the policy to mean that it is unfair to taint a candidate with allegations that they won't have time or opportunity to rebut? So as in, if you take a public investigatory step, suddenly, you know, with only three weeks left to go to the election, well, that doesn't give the candidate much time to actually defend themselves. And all of a sudden, the department has put their thumb on the scale versus a trial, which the whole purpose is that a defendant gets to defend themselves. And so the policy or norm wouldn't be implicated there either.

So in terms of historical precedent, there's not a ton, but Ted Stevens' verdict, the Alaska senator, comes out a week before his election. What's interesting there is that he was the one who demanded the speedy trial, not the prosecution. Senator Menendez is under indictment right now. Yep. Now we're not in that 60-day norm window, but does anyone think that every six years

Senator Menendez gets a 60-day no trial, get out of jail free card. No. And now apply that even in the congressional context, that would be really hard. If you indicted someone right after they were elected to Congress, it's very possible that you would end up in this weird position of not being able to actually go to trial because they're within this like election window, which doesn't seem to be in the spirit of the rule exactly. So I think certainly the three added together, but even the three individually, is it even a policy? Yeah, I mean, to some extent. Does it only apply to election related crimes as in something that comes up during the course of the campaign itself?

That seems to me really compelling. And then number three, does it apply to a trial or is it for the purpose of allowing someone to defend themselves, which is what a trial in fact is, so it doesn't apply to a trial? When Jay Brad initially said that in the hearing, I was very side-eye about it, but as I've dug into it and really broken out this policy into its component parts, yep, I think the policy norm, whatever it is, to the extent it even exists, probably doesn't apply to this entire case. Yeah, it's that's a great that's a great summary, Sarah. That's fantastic. And also, there's this additional factor that DOJ policy has zero, zero legal power over a trial judge setting a trial date.

So that was Jay Brat's argument, actually, that it can't be a DOJ policy because it's not under my control to set a trial date. Right. We'll put that as bucket four. Yeah, exactly. And that the trial date is completely out of the prosecution's hands. The way I harmonized all this as I was walking through it and trying to figure this out was, hands. The way I harmonized all this as I was walking through it and trying to figure this out was, okay, probably you shouldn't seek one, a trial date within that 60 day window. In other

words, if you're DOJ and you're trying to comply with the letter and spirit of the policy, you shouldn't be the one moving for trial in October. But if trial is ordered for October, trial is ordered for October. Or if it's running into October, trial is ordered for October. Or if it's running into October because it's a three-month trial. Or if it runs into October, exactly. Then it's up to the judge if the judge wants to recess the trial for a while or not. But I do want to circle back to something at the very beginning about this timing issue. I think two things can be true at once. One is, I think the Supreme Court should actually consider timing because the totally unique nature of the defendant here and the ability to end the case, like 999 out of 1000. Well, probably even more than that. 19,999 out of 20,000 political defendants have no ability to end a case in this time.

Yes. We don't decide in civil cases whether to decide a certain way or to do something because otherwise it would moot the case. But this is not a civil case. It is a criminal case where the interests of the United States of America are being asserted to preserve the integrity of criminal law. The idea that a court cannot consider that, hey, if we take a fork in the road, fork in one direction, in spite of the fact that this is a legally sufficient criminal complaint

brought by the United States against a private citizen, that we just won't be able to decide it is road number one. road number two is not won't be able to decide it that there might be a four year hiatus in deciding it might. First of all, it's hypothetical. Not if he pardons himself, then it's a permanent. If we even think that that is possible. So that's also hypothetical. We don't know the answer to that question. Nobody's raised that even. So it's I mean. The only thing we know for sure is that if Trump were elected and he hadn't been convicted, he could not be tried while he is in the office of the presidency. That to me is just not a legally that he can order the DOJ to dismiss

the case with prejudice. Well, only the judge can do that. DOJ can ask for that. But he can order it to he can order the DOJ to dismiss the case. Yes. It would not necessarily like double jeopardy would not adhere unless a jury had been convened. True. Statute of limitations is statute of limitations told. Interesting question. I would think so, because that's based on the indictment, not based on the trial. But again, everything I just said about nineteen thousand nine hundred and ninety nine out of twenty000 criminal defendants in this position do not have the ability to do any of those things that I just outlined at all that do bear on whether the case will be heard. Well, do we speed up a trial because someone's 104 years

old? So just by definition, they're not going to live? No, we follow the regular order because it's the regular order. We don't do things because of what the defendant might be special about or do himself. We actually do that all the time, Sarah. We make decisions based on there's distinct aspects of this particular defendant. We'll move venue often. We'll do things like, you know, there are absolute decisions that are made because of the unique nature. We move venue based on the jury pool. Right.

Because sometimes there are defendants. That's not based on the defendant. Absolutely based on the defendant. If the defendant has a particular kind of notoriety or influence over the jury pool, there's a, these are all, these are things that when a court can consider, and I guess I'm a little bit confused by the notion that the ability to pardon himself should not be considered in this at all.

Because again, this defendant- Someone else could pardon him though and we don't consider that. So like we don't not try someone because we think like if the president of the United States says, if you try my son and convict him, I will definitely pardon him.

We don't then not try him. So your position is, so if your position is, the court should not consider the defendant at all if the defendant can stop the case. Correct. That is not a legally cognizable question. Why is it not a legally cognizable question? Because there is a public... It's not part of our criminal justice system. No, our criminal justice system is that the interest of the state, the state is entitled to prosecute and vindicate criminal laws. And if there is a defendant who can.

That's not true. We have all sorts of ways in which the state isn't entitled to do that. That's why we have the exclusionary rule and right to counsel. And we have all sorts of limitations on that. And so we follow all of the rules that we have in our criminal justice system and nothing in our rules or constitutional law says that you speed up a trial or skip some steps if the defendant might not stand trial otherwise. That's just not one of the, is part of the equitable elements of a case. For example, if a, what, for example, a defendant can, of course, speedy trial, speedy trial rights accrue to the defendant. The defendant can say, I want the speedy trial. But the idea that a defendant can say, well, you know, I want indefinite, I want two, three, four year delay.

Well, the court considers the interests of justice in its trial calendar. And the interests of justice here, you have a defendant who could literally- No, but that's not how that works. That's not, if someone wants a four year delay, we don't just say like, well, we would give you the four year delay, but interests of justice, no, we say,

wait, do you have a motion of something that would delay it? And in this case, the answer is yes. And the question is only whether we consider that motion or not. But the question is, no, no, no, no. So the question here is, is there a valid reason to consider trial timing related to the idea that this defendant can completely end the case on his own power and authority. Here's where I think we're disagreeing about our question, actually. You're talking about the trial date, and I'm talking about whether the Supreme Court should consider the question and follow regular order in doing so. This case is already moving much faster than any other

criminal defendant in Trump's shoes would ever move. But everyone is following the regular order of operation. There's people arguing that it should have skipped the D.C. circuit or that the Supreme Court never should have taken it. They're saying that we shouldn't follow what a criminal defendant in Trump's like with Trump's legal arguments would get. And that's where I'm saying we should follow regular order and not just say, well, the Supreme Court shouldn't decide this, even though they otherwise would and should, because I want this to go to trial faster. Well, but right. But the problem is the question is not should they have taken the case? I think they should have taken the case. I mean, the actual order grants Jack Smith's motion. So it's as you were saying, it's both parties were seeking review here. The question is, what do they consider when they're undertaking the inherently equitable analysis of, for example, continuing to stay

the issuance of the mandate? That is an equitable analysis. There is a consideration of irreparable harm. There's a consideration of possibility of harm. There's a consideration of possibility of success on the merits. And they just skip to all of that. And we both know they didn't have to skip all of that. They mooted out the stay motion. But in the stay motion, it's inherently equitable that includes these considerations. And I'm saying that Trump's identity as somebody who could end the case

actually cuts against him in some of these equitable considerations, not to mention that his actual argument is completely frivolous. But I know his argument isn't frivolous. That his his desired outcome is frivolous, that all presidents have absolute immunity from all criminal prosecutions. That's not just that's his argument. No, that all presidents have absolute immunity from all criminal prosecutions. That's not just that's his argument. No, that's the conclusion that he wants. The argument actually is going to lead to a different outcome, which is the one I've talked about, which is like this core versus outer ring situation. But David, can I tell you something else that has annoyed me that people have said?

Sure. That the Supreme Court hates criminal defendants, always rules against them. And so Donald Trump is getting special treatment from the Supreme Court. And then to back up that argument, this one reporter or writer had all death penalty cases. Wait a second. This isn't a death penalty case and the death penalty the laws on the death penalty and what you're actually the supreme court's dealing with are actually usually anti-terrorism and effective death penalty act stuff habeas like all sorts of really tangential to the criminal procedure side of this in fact on the criminal procedure side this this. In fact, on the criminal procedure side, the Supreme Court

just ruled last week in McElrath, right? They expanded double jeopardy, albeit in sort of a weird and one-off way. Confrontation clause, Fourth Amendment. The last couple terms, the Supreme Court has been incredibly generous to criminal defendants and expanded criminal procedure rights to criminal defendants. So like, I just feel like the anti-Trump people are really grasping at straws as to why they hate this, even though they normally want to expand rights for criminal defendants and why it's okay to believe that, but not believe that they should be expanded or even applied to Donald Trump. And that bothers me because they're just wrong. The other thing, one point that you made that I think is just spot on, a big part of the

timing here is just when the case was brought. You know, the January 6th happened in 2021. The fundamental, most important facts surrounding that have been known for a really long time, certainly were known in 2021. The January 6th prosecutions got rolling in 2021. And so, you know, this case was brought, I mean, Jack Smith moved expeditiously after he was appointed, but this case was brought pretty late. It was brought pretty late.

So that's why I say there were two things at once. One, I think the court, when determining whether or not to grant a stay or to not issue the mandate, absolutely should consider, absolutely should consider the fact that Trump could end this case. But it's also true that the, in addition to the other factors that are relevant when you stay a case. But it's also true that, man, the case should have been brought earlier if the fundamental concern was to have the case heard before the election. If that's a fundamental, fundamental concern, then it should have been brought earlier. And once you brought it this late, from the beginning, you and I, Sarah, said, it's gonna be hard to have this case before the trial. I mean, before the election.

Just from the moment it was filed, it was obvious. And then from the moment Georgia was filed, it was double obvious there. But it was just obvious from the moment it was filed, it was gonna be very challenging to get it over the finish line. And we're not through the kinds of delays that delay cases.

You know, so it's not like this is the last hurdle to clear. That's true. I'll just end with, I haven't quoted it in so long. It's, you know, since these cases were first brought, since the bragging diet was first brought.

This would be from Robert Boltz, a man for all seasons, a play in two acts. Roper, so now you give the devil the benefit of the law? Moore, yes. What would you do? Cut a great road through the law to get after the devil? Roper, yes, I'd cut down every law in England to do that. Moore, oh, and when the last law was down and the devil turned round on you, where would you hide, Roper, the laws all being flat. This country is planted thick with laws from coast to coast, man's laws, not God's.

And if you cut them down and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the devil benefit of the law for my own safety's sake. Well, Trump's getting the benefit of the law in spades. He's getting extra bonus.

He's getting- No, not extra bonus. That's where we disagree. Any other criminal defendant would, in fact, have had their case granted, but it wouldn't be heard until next November or this November, however you want to think about it. So already on an expedited timeline, the Supreme Court would always have granted this case. I'm speaking of the 14th Amendment, mainly. I agree with you largely. I think that there is no no reason to issue to continue to stay the case. But the 14th Amendment is what I'm speaking about. That was a big decision. They went big on that. And they kind of wrote section three out it's not a constitutional right truly if it require if congress congressional legislation it's not a constitutional

uh provision in many ways if it does if it's not even effective unless congress can act then it's how's it not just a statute or just asking Congress to pass a statute? That's that's my issue with that is it's section three of the 14th Amendment is now devolved into here is a request that a future Congress draft a statute to accomplish, which feels atexual to me. That's the that's the big deal. The immunity case, that's a I think we know the outcome of that case. This case was hardly, it was going to be doubtful whether it was going to be able to be tried before the election anyway. But the 14th Amendment, that's the one I'm strongly disagree. Yeah, strongly disagree with that one. You're smarting over? So you would have states just a patchwork, as the majority said. So so again, we didn't get to get to that because that's not actually

accurate. So what happens is just like with a lot of situations where case laws bubble up from the states is that then there is, as we just saw, if you get to this on the merits, the court would have to decide on the merits. Was he encompassed by the statute? Did he commit an act of insurrection? You interpret it like you interpret every other constitutional provision. We've interpreted equal protection under the laws. We've interpreted due processes. These are all things that courts interpret. And so, yeah, it would come up from the states in a patchwork, but there would be a determination, a final determination, does Section 3 apply by the Supreme Court of the United States? And that would, from that point forward, the patchwork element would be ultimately changed by deciding controlling Supreme Court authority.

But based on what this is, this was brought up at the argument, though. OK, assume different states have different standards. One is preponderance of the evidence and one is a heightened review. OK. The preponderance of the evidence one comes up to the Supreme Court. Did they use preponderance of the evidence? Because that's what the state standard was? Or now assume that the heightened review one comes up to the Supreme Court and they decide that one. Well, now what happens to the state that had a

preponderance of the evidence standard? Or does the Supreme Court have to hear all 50 states versions of this based on the fact the facts presented in that trial? Again, all of this. It's so funny to to walk through this because what you're talking about, Sarah, is what they do all the time. Like Justice Barrett, for example, when she was sitting on the Seventh Circuit, she got a case about regarding Title IX procedures for male students involved in sexual assault proceedings.

And one of the questions is, what process was due? And the court decided, the court decided what process was due. So what happens is if something comes up... So Colorado would have a heightened, sorry, preponderance of the evidence standard, but the Supreme Court would say, no, the 14th Amendment, Section 3 actually requires a heightened standard? Well, it might say, here is, in all circumstances, the court, when it's making this due process determination again, this is what the court does all the time, is it weighs the strength of the liberty interest against the process that is provided. I get it. But answer my specific question. Oh, I think if it's a preponderance of the evidence satisfies due process, this is not a criminal conviction. There's not a loss of liberty. No, no, no. But assume for a moment that Colorado used a preponderance of the evidence standard,

but the Supreme Court thinks it should be a heightened review. I would disagree with that. Can they themselves just have a set a heightened review standard? Which they can do because that they are weighing the liberty interest here. And they could say as a matter of due process, you need a clear and convincing, or you need beyond a reasonable doubt. That's a due process question as to whether that's sufficient due process. So you could have something come up from the Colorado Supreme Court that was preponderance of the evidence, and the court could say, this is not sufficient process.

Okay. So they say that there's a heightened review, clear and convincing. Let's just adopt that. And so then they will apply whether the facts presented at trial, the evidence presented meets that clear and convincing standard. But what if Colorado allows in different evidence based on their evidence, state evidentiary rules than Maine allows in? And then you've got two cases with different evidence. So their state evidentiary rules than Maine allows in. And then you've got two cases with different evidence. So Maine, he's not, he doesn't meet the clear and convincing standard in Maine. So he's allowed on that ballot, but it does meet the clear and convincing standard in Colorado. So he's not allowed on that ballot based on state evidentiary rules. Well, so then the question is, so the question is that at that point you get to

a substantive analysis. If you've met the minimum threshold for due process. So in other words, they say it's clear and convincing. Then you get to the question of, is he an officer who's taken the oath and subject to and was there an insurrection? You get to the actual determination. Sure. But based on what evidence of insurrection and whose evidence do you use? Colorado's with their evidentiary rules or Maine's with their evidentiary rules? If it has been demonstrated that it is sufficient due process.

So due process is a floor, not a ceiling, right? Totally. But you see my point that he could be disqualified in one state and not on the other state just based on that exact same rule, like standard, but with different evidentiary rules at the state level. Right. And then but if the court has said that the Maine disqualification is correct, that will have to there will have to be a finding that he was an insurrectionist, that he's encompassed by Section 3. And at that point, you've got a substantive finding by the court that he is an insurrectionist. Section 3 applies. There was sufficient due process. But only under Maine's evidentiary rules. No, no, no, no, no. No, that's not the way this works. If it's minimally

acceptable due process and different places have different kinds of due process, once you cross that, if you have minimally acceptable due process, then you have a substantive finding. So equal protection. So that then it goes to the lowest common denominator, whichever state has the most expansive evidentiary rules gets in the most evidence, that's what then meets, they then meet the clear and convincing standard, and then that will apply statewide. Sorry, nationally. That would then take him off the ballot nationally. Yes, correct. Because there would be a finding by the court. That's concerning. Does the Supreme Court find that he's an insurrectionist? That's a concern?

No, that the state with the most expansive evidentiary rules wins. That meets due process, the minimal due process requirements, which is the way it always works. Would then set the national standard. So we'd use a state, a state rule to set a national standard for a federal presidential candidate.

I mean, I hear you. No, no, no. I hear you. It's a due, no, no, no. Use a federally approved due process standard. I get that it has to. No, no, no. I hear you. It's a do. No, no, no. Use a federally approved due process standard. Federal due process. But right. If every state had a had certain evidentiary rules that didn't allow in this evidence, then he wouldn't be an insurrectionist. But if one state has broader evidentiary rules, it's still I hear you meets

the very basic floor of federal due process, then that state would set the nationwide standard for who would meet this. Again, I hear you. That's not crazy to me. It's just, it's not the way I would go. But it's also the way the law works when it comes to equal protection. It's the way the law works that once you have the appropriate level of due process, then you get to the substantive issue. And so the question would be, A, what's appropriate due process? And then B, did that process yield

the accurate, you know, is that the result, does the result, is the result supported by the evidence in the process? So it's just a very conventional analysis. And I think that Mitchell did a really good job, obviously, of sort of confusing all of that to say, no, you're going to have an outcome in Colorado and an outcome in Alabama, when the reality is what you'll have is different forms of process yielding a conflicting outcomes. And the Supreme Court decides that stuff all the time. It's what it does. Well, I disagree with that. But I hear you and I take your point.

You're talking about civil lawsuits where they accept a state's rules as long as it meets, as you said, the floor of federal due process standards. And then that person wins their case. But I can't think of a case where it sets a nationwide law or policy based on one state's evidentiary rules. Well, if you no, no, no, it's not based on the evidentiary. So I think where the disconnect is, is you have two, you have an inquiry that comes in and says, this is you should reject this finding because of a failure of due process. Well, then you go through the whole

analysis of whether this process was sufficient. If the process is sufficient, and there are lots of different state systems for, for example, resolving equal protection complaints and there are lots of different formal, informal evidentiary rules. Yes, but they don't set then the policy for the other state. In this case... They don't set the due process policy, but on the substantive outcome. In this case, Alabama's outcome would set the national outcome. And that's like, but you know, if you have if you have different kinds of due process, you still get to a substantive analysis on the basis of equal protection that is then precedential. If it's a district court in the district, it's circuit, it's in the circuit. But it's precedential on what the law is, not on whether that person then now wins all cases across all states based, like, do you see the difference? Like the law becomes precedential, not the outcome. Here, the outcome would then be applied

nationwide. That's what's odd. Because there's a finding by the Supreme Court of the United States that he's an insurrectionist subject to Section 3 after a process that was sufficient. Again, I think I hear you. That's the way it works. I think I understand you. I just disagree. As do nine justices of the U.S. Supreme Court. If the Supreme Court, of course, if the Supreme Court, if the Supreme Court wanted to, let me put it this way. If the Supreme Court had decided that he's encompassed by Section 3, that Colorado had sufficient process and that he engaged in insurrection and that he's an officer under the United States encompassed by Section 3, he would be off of Colorado. But the the precedential strength of the finding that he was an actual insurrectionist would mean that he's not eligible, period, because the Supreme Court had made that determination. period, because the Supreme Court had made that determination. And so that's what the Supreme Court would do. It would come up through a state just like it would, you know, if you had a private right of action to do it, it would come up through a private right of action. But you would have a

legal finding that he was an insurrectionist within the meaning of Section 3 of the 14th Amendment. And once you get that from the Supreme Court, he's done. He is done. He's not eligible. Yep, I hear you. And I know they all disagree with me. And it is absolutely, you know, the case, you know, people are all, you know, on online saying, you idiots who thought this had a chance. Everyone who I think except for maybe a very few people who thought that the Section 3 argument was very strong, knew this was heavy lift. I mean, anytime you're asking the Supreme Court to do something it's never done in its history, that's a heavy lift.

But it is not. I don't I don't think I don't think it's a good decision, but it's definitely a heavy lift, you're asking the court. Well, as one listener said, the name of this next emergency pod better be named Gnaw Dog because that's exactly what the Supreme Court did to everyone on this 14th Amendment, Section 3 little pony that they were riding around town.

With that, we have lots to catch up on for the next episode. We have Judge Newsom's speech on text history and tradition, a little side eye there. We have the Cargill-Bumstocks argument, where a lot of Supreme Court justices needed to go to the firing range together,

and plenty more where that came from. We'll talk to you next time.