No Lie with Brian Tyler Cohen - Judge issues major ruling on Trump's 2024 run

Episode Date: November 19, 2023

A judge rules that Trump engaged in insurrection, but stops short of disqualifying him from the ballot in Colorado. Brian interviews former Obama speechwriter and host of Pod Save America, Jon Favreau, about whether a conviction would mean Trump is no longer viable as a candidate, whether we should be worried about Biden’s low poll numbers, and the impact he thinks a third party candidate would have on the election.Pre-order "Democracy or Else: How to Save America in 10 Easy Steps" at crooked.com/books or wherever you like to get books.Shop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about the chances of Trump being disqualified from the ballot after the latest court ruling. And I interview former Obama speechwriter and host of POTSA of America, John Favreau, about whether a conviction would mean Trump is no longer viable as a candidate, whether we should be worried about Biden's low poll numbers, and the impact he thinks a third-party candidate would have on the election. I'm Brian Tyler Cohen, and you're listening to No Lie. We've now got the ruling from the Colorado case that was brought by the watchdog group,

crew, to disqualify Donald Trump from the ballot based on Section 3 of the vote. 14th Amendment, which prohibits anyone from holding office if they engaged in insurrection or gave aid or comfort to those who've engaged in insurrection. The judge, Sarah Wallace, ruled that Donald Trump, quote, engaged in insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump's speech. But in that same ruling, she also found that the 14th Amendment's insurrection ban does not apply to presidents, and therefore she rejected the effort to remove Trump from the primary ballot in Colorado. So obviously two major findings here, first that he did engage in insurrection, and second, that it doesn't apply to presidents. But I want to focus on

the second one, that Section 3 of the 14th Amendment doesn't apply. So first, here's what Judge Wallace wrote. Quote, after considering the arguments on both sides, the court is persuaded that officers of the United States did not include the President of the United States. It appears to the court that for whatever reason, the drafters of Section 3 did not intend to include a person who had only taken the presidential oath. Now, I'm going to read Section 3 of the 14th Amendment, and I'm just going to read the pertinent parts here, so it's not too confusing. Quote, no person shall hold any office, civil or military under the United States, who, having previously taken an oath as an officer of the United States,

shall have engaged in insurrection. And look, I want to make the caveat at the top here, that I'm not a legal scholar, but I'm also not sure on what planet this passes the smell test. Think about this logically for a moment. The 14th Amendment was ratified after the Civil War expressly to prevent those who previously served from serving again if they engaged in insurrection. Judge Wallace is suggesting here that the authors of this amendment went through the trouble of prohibiting any elected official

who engaged an insurrection from serving again except the president, meaning that in the event a president sought to overthrow our democracy that he or she should be able to continue serving as president. They devoted an entire constitutional amendment to insulating our democracy from its enemies but built in a glaring loophole for the most powerful person in the country. I'm sorry, but that is just devoid of basic logic. What I think happened here is that the judge didn't want to be the person who would unilaterally determine that Donald Trump can't appear on the ballot. So she wrote a more than 100-page ruling, the majority of which lays out that Donald Trump did indeed engage in insurrection so that it doesn't come across to some huge win for Trump,

but that she was just up short of actually finding him ineligible to appear on the ballot because of some technicality with the wording of the amendment, which, again, doesn't really make any logical sense on its face. If you're wondering why she might do that, you can refer back to her own statement from a few weeks back where she concedes that she had concerns about, quote, safety for the parties, for the lawyers, and frankly for myself and my staff based on what we've seen in other cases. So if you're wondering why Donald Trump commits so much time and energy to intimidating judges and prosecutors and witnesses and court staff, it's because sometimes it works. And look, I want to be clear that we can never be sure one way or the other that this is what happened. but from a layman's perspective, this all certainly does seem like a reasonable read to me, that Judge Wallace went 99% of the way before taking the very last exit and then blaming it on some tortured reading of an amendment that was literally adopted to prevent Civil War insurrectionists from running for elected office.

Again, how that amendment would somehow seek to purposefully protect an insurrectionist president makes no sense on its face. But here's the takeaway. It is not now, nor ever, solely up to the courts to save this country from the dangerous of another Donald Trump term. It's just not. We can't allow the fate of our democracy to rest in the hands of judges who may be politically aligned with Donald Trump, who may themselves worry about their own safety, who may not have the experience or the temerity to rule against someone as powerful as Donald Trump. Obviously, we've got prosecutors and judges working their asses off to make sure

that he is held to account for his actions. And for the record, I do think he will be. But at the same time, the onus has to be on us to protect this democratic experiment. It has to be on us to make sure that people know that a judge just found that the leading Republican candidate for President of the United States engaged in insurrection against our own government. I don't know how to make this any more clear beyond saying that this man is an enemy of the United States of America. So while we can't control what happens in the courts and we can't control what specific words and some 150-year-old amendment might offer Trump an out, we can control what we do heading into 2024. We can control making sure that our friends and families and

neighbors and coworkers know the stakes in this election and that they have a plan to vote. We can make sure that they know that even a judge found that Trump engaged in an insurrection. And we can make sure that we are informed about what's happening in this country because one party is very clearly relying on your ignorance to feed you disinformation, so don't give them the satisfaction. Next up is my interview with John Favro. Now we've got former speechwriter for Barack Obama and the host of POTSafe America, John Favro. Thanks for coming back on.

Thanks for having me, Brian. So, POTS of America famously isn't a prediction show, but this show, we do shameless predictions all day every day. So I want to game out the prospect of a Trump conviction because it does look like Judge Chutkin in Washington, D.C., and that trial is hell-bent on making sure that it starts on time in March, which could mean that we see conviction and sentencing before the election in November. If Trump is convicted, do you think he's still viable as a candidate in the Republican Party?

Yes, unfortunately. I think he's still viable as a candidate, but I do think, I mean, for all to talk about the New York Times, Siena polls a few weeks ago, I thought that the best piece of news in there is that even with Joe Biden struggling against Donald Trump in those battlegrounds by losing by a couple points, if Trump is convicted, you have a bunch of voters who at least told the New York Times that they would switch to vote for Joe Biden. and Joe Biden would lead actually by double digits in a lot of those states, which just goes to show that, like, we have no idea what the political environment will feel like next year, next month, a couple months later. So it's just, it's tough to know. Now, I still think that, like, that, you know, the flip side of that is it shows that even though Biden is leading by double digits of Trump is convicted, he's still, you know, Trump's still in the game. So he's still a viable candidate, but it looks at least like from that poll that it gives Biden a boost. I mean, this is also impossible to tell one way or the other right now, but do you think that

Donald Trump stays the Republican nominee, or do you think that there is some type of defection to a Nikki Haley or something like that? I can't get in the minds of those folks, but I, from everything I've seen over the last several years, I would highly doubt that they would, Because here's the thing, if he was somehow convicted before he wrapped up the nomination, I think that's a separate story. But if let's say, I think the earliest you get a conviction is like April, right? If the trial day doesn't slip. And at that point, Super Tuesday.

Probably even a little bit later, like, yeah. Probably a little bit later. And at that point, Super Tuesday has happened and he gets the majority of delegates. So now you've got a Republican base in a Republican Party infrastructure that loves Trump, has always loved Trump, thinks the convict is probably. going to say that the conviction is unfair, that it was weaponized, justice department, all that kind of stuff.

So they already think that. And now he's got the majority of delegates or he's got the nomination locked up. So I don't know that they, I think there'll be some small movement within the Republican Party to tank him as nominee, but I don't know that it'll work. This is also a party for whom inciting an insurrection

wasn't disqualifying. So the idea that, you know, the Biden's weaponized DOJ is gonna, is gonna, you know, be some giant litmus test for them, kind of defies logic and defies history so far. By a bunch of Trump hating blue liberal jurors and DC and a Trump hating judge, yeah, no. Now, if Trump isn't a candidate

and you've got these other Republicans who have shamelessly pandered to his voters without upsetting them too much during the primary, you've got the Nikki Haley's and the Ron DeSantis's towing that line. Do you think that Trump voters, and you've spoken through your wilderness series, you've spoken to voters across the country,

Do you think that these voters do have the capacity to switch over to another Republican, or has everything that you've seen thus far shown that these are Trump voters and not necessarily Republican voters? So I think it depends on the voter. I think the way that I would split up the Republican electorate based on all the data I've seen over the last several years and people I've talked to is there's about a third of the Republican electorate that is like they are Trump people no matter what. They are excited to vote for Trump.

They have made up their minds. They are ride or die, jail or no jail, Trump fans. Then there's probably a third of the electorate that's like, we don't like Trump. We are actively looking to move on from Trump. I don't want to vote for him. I want to vote for another candidate. Then I think there is a third of the Republican electorate that loves Trump that thinks, maybe we should move on.

I'm willing to look at another candidate. I'm open to other candidates. And like, maybe electability is a concern. Maybe he's too extreme. but I don't know. I kind of like them too. So that's, I think, the up for grabs part of the electorate. Well, that does pose a pretty serious problem for Republicans because, I mean, Donald Trump lost Wisconsin, for example, in 2020 by six-tenths of a point, and he won it by that much in 2016. So if there is a third of the electorate who wouldn't vote for anybody if it's not Donald

Trump, who's not going to bother turning out if it's not Donald Trump, and you're winning these states by less than a point. I mean, that ain't it. I mean, I think that if Trump, if the polls somehow shifted and Trump was in trouble in the Republican primary or became competitive. I actually think that's an argument that Trump and his campaign would start making to Republican voters, like nominate me or else we're going to lose because my people won't show up. Right. You know, to your earlier point, you've spoken about these polls that show Biden's week poll numbers. I think that we're on the same page in terms of reminding people, first and foremost, that most Americans aren't paying attention to politics right now. And so anything in

polling that we're seeing is kind of reflective of just the freaks like us who are, you know, clued in in November of an off year. But with that caveat aside, do you think that that polling for Biden has caused for alarm? I think it's cause for, Dan Pfeiffer always says this. It's worry about everything, panic about nothing. So I do think it's cause for worry, but I think we should be worried constantly because Donald Trump is probably going to be on the ballot. Democracy is at risk. So yeah, I'm worried. I'll give you two scenarios. both of which I truly believe could pan out. The hopeful scenario here is, like you said,

not a lot of people are paying attention. The electorate is grumpy. They are maybe a little scared of the chaos in the world and some at home. They are very worried about the cost of everything. Prices being high, even though the rate of inflation is coming down, prices are still stubbornly high. So you get a grumpy electric

And then when they answer a poll, they are registering their disapproval of the person who is in charge of all of this, which is Joe Biden, right? And incumbents presidents have had this problem before Barack Obama had this issue in 2011 leading up to the 2012 reelect. And so then when the campaign really starts next year and it becomes clear to everyone that Donald Trump is going to be the Republican nominee. And it becomes real to people that we could have another Trump. presidency, then people start keying in and the polls start shifting. And Joe, and it's still going to be a very close race, but the folks who are disappointed now, which are primarily younger voters, voters of color, and these are, these tend to be the most disaffected voters, voters who maybe are hard to poll right now. They come back into the electorate and they vote for Joe Biden, even if they're not thrilled about it. And then Joe Biden wins. That's the hopeful scenario. The not hopeful scenario is that we have been winning, Democrats have been winning these special elections and these midterms because our coalition is filled with a lot of college educated voters who are really tuned into politics because there are people like us who have been pretty nervous since 2016 and they have been showing up and those Trump fans that we were talking about have not been showing up as much because Trump wasn't on the ballot and once we have, you know, like we use the example of the abortion ballot measure in Ohio. There's like about 2 million more voters in Ohio that we know we're going to show up for the general election then showed up in the midterms.

And those voters, according to all the data, tend to be a little bit more moderate, younger voters of color, but still more moderate and more disaffected in their views of politics. And so if those people show up and then the Trump fan show up as well, then it becomes a much closer race and you could see Donald Trump eking it up. Yeah, I guess what remains to be seen is whether those people who are going to turn out just because Donald Trump is on the ballot are going to outweigh the number of people in the Republican Party who are just so disgusted with Trump that they'll never turn out for him. And so, like, you know, this is the first time that Trump will be on the ballot in four years in 2024. And, you know, I guess we'll see what those numbers kind of ultimately like balance out into. Yeah. And the other thing you've got to watch is these, they're known as the double haters, people who disapprove of both. both Biden and Trump. And a lot of these are voters who voted for Trump in 2016 switched over to Biden in 2020.

And now I would have been like, well, why would they go back to Trump? But, you know, some of them are like, well, I miss the economy under Trump. And even though he's a little crazy, you know, I heard someone at a focus group say, I'll just, I'll turn the, I'll turn the television off. I won't listen to him and I'll just enjoy the Trump economy for four years, which is, that's the thing that's got to keep us up at night and keep us thinking about how to reach those voters. And you've done like a ton of

of focus groups, again, like with the wilderness. What was the weirdest thing that you've heard from a voter that just didn't make sense? I mean, you've said it a million times, the voters are weird. So, like, what's the most bizarre kind of combination of things you've heard? I had a focus group in Vegas with Hispanic voters who were sort of non-college educated undecided. And one guy was like, you know, I really like AOC and Ron DeSantis. Yeah. Yeah. Yeah.

I was like, what? What is that about? They're like, well, they both seem like they're outside. They're like outsiders. You know, this was last, this was 20, 22, right? So they might not, he might not say this about Rand DeSantis now. They both seem like outsiders taken on the system. I was like, okay, sure.

Going back to the polling of it all, you've been around these. campaigns for a long time. Do you think there is some degree of kind of manufactured drama because the media needs it by kind of really making these polls the highlight of political coverage? I don't think that the media needs it as much. But I think it's something that they know drives conversation. And I think because the media is not just media outlets now, but like all of us on social media, like the conversation starts getting ahead of itself. And like, I, you know, first of all, there's a lot of polls that are just junk polls. right they're partisan polls or their polls that aren't really done well i think the new york times

poll is is traditionally been quite a good poll that has been quite accurate and i think when you read like the poll or nate cone summary the poll like it's it's carefully done and i think in a responsible way the way they write about it then you've got headlines tweets other people's opinion and like that's the stuff that starts getting a little silly and a little and ahead of its skis like i think that the problem in 2022 was not necessarily that the polls were saying that there was going to be red wave. It's that the punditry around the polls got ahead and said that there's going to be a red wave. But the polls themselves, minus, again, like some of the partisan Republican polls that were screwing up the averages, the good quality polls pretty much nailed it. Yeah. What do you think

is working and not working within the Biden campaign right now? I think what is working is they're doing so they have a like a rapid response team at the campaign that's got like the, it's like a Biden-Harris War Room account that they're... Biden HQ? Guide in HQ, yeah. And they are putting out a lot of clips of Donald Trump sounding like a moron. And I know that sounds simple and it's like,

Trump's bad. We need to do more than that. Talk about that because that is a point that you brought up on a recent episode of POTSafe America about this idea because for so long, kind of we had been operating under this prevailing notion that we shouldn't give a platform to Donald Trump. So can you just speak on that for a moment?

Yes. I think that one of the reasons Donald Trump's looking better to a lot of voters right now is because we don't have any collective memory anymore in America because media is so fast and we like forget yesterday's new cycle and let alone what the years from 2016 to 2020 were like, never mind the insurrection. And so I think that people do need to be reminded of not only what Donald Trump was like and what his four years in office were like, but what he is going to do if he becomes president again.

And I think that what's working best with the Biden campaign is our contrast. So it's not just positive ads about Biden. It's not just purely negative ads about Trump. It is if Donald Trump and Republicans win, this is what's going to happen. This is how it's going to affect your life. If Joe Biden and the Democrats win, this is what's going to happen. And this is how it's going to affect your life. Because I think when it comes down to it, voters are not going to support candidates based solely

on, well, I don't like his character that much or I'm disappointed in this or I remember this thing. It's like, how's this going to affect my life? Right. And if you know that Donald Trump becoming president is going to mean that where you live, you won't be able to get an abortion anymore, that's a big data point for people. It means that, you know, you are the child of immigrants and you could be deported because Donald Trump has promised to do so, like in his first day in office, then you're, that's a good day. a point for you right and i think those are the those are the issues that are going to eventually um sort of get undecided people off the sidelines and i think that's probably what the biden

campaign is going to focus on them was okay uh does the prospect of a third party candidate or a number of third party candidates were you at all like we may see some combination of joe manchin jill stein robert f kennedy junior cornell west yes any any candidate that fractures the anti-trump coalition that elected joe biden in 2020 and flip the house for democrats and the senate is um it worries me because i think and look there's the argument over does r fk junior take more from trump or take more from biden and i think you could argue that both ways i sort of think it's also still too early to tell but donald trump has as we've talked about like a base of support that's pretty strong. And Joe Biden's base of support is that is largely an anti-Trump coalition,

right? There's definitely some like Democrats that would just go vote for Joe Biden. But the reason he got elected in 2020 is because people from AOC to Joe Manchin were like, we might not agree, but we don't like Donald Trump. Right. And anything that fractures that coalition is a danger to, I would say, democracy because it's either going to be Joe Biden or likely Donald Trump. Just on this idea of like kind of Republicans screwing themselves then, you know, we've seen so many election results that are largely predicated on their on their extreme abortion bans. Why double and triple down on this issue? Like it kind of defies logic that we are seeing them lose everywhere from Kentucky to Kansas to Ohio and yet they keep pushing this. I mean, is the answer just that they need to win a primary and that they're just pandering to their base and then hoping that nobody pays attention, you know, toward the general or what is the answer here?

It could be a little bit of that. It also could be that they just really want to ban abortion and they don't care about the polls. You know, like take them at their word. They just really, for some of them, that's what it is for sure. Others know that it's a political loser have started to say that the bans are political losers or worried about them, but they're trying to navigate a base that is, you know, very excited about the bans. and others in the Republican coalition who were not, right? Like, it's not just a political issue, but there's like, you know, I mean, I think the New York Times poll showed that 40% of Trump voters believe that abortion should be legal in all or most cases. So they have voters who also don't want abortion bans, but they have voters who very much want abortion bans and don't want to stop at the states that have the bans right now.

They want national bans and they don't want them for 20 weeks or 15 weeks. or six they want nothing they want no no exceptions yeah i guess i'm not i shouldn't be surprised that like these people aren't responsive to the will of the majority of voters like these aren't stalwart defenders of democracy right right uh do you think that donald trump and jo biden will debate it's good question i think they will i think they will because i think that i think that trump people want it and uh at least they're sending signals that they want it because they think that Joe Biden, they've believed their own spin that Joe Biden is like senile and couldn't stand in a debate. And so that I think that the Biden people, I don't think they can

back out of it. And I think that Biden, you know, will want to debate Trump and will want the contrast. Yeah. I mean, again, it shows to your exact point, it shows the contrast between the two pretty clearly when you have Donald Trump who's going to be ranting and raving like a lunatic on that stage and then Joe Biden, not, you know. Not. Yeah, that's it. Now, we've got a year to go until the election. What is your strategy at Crooked Media to kind of make the most of this year? Yeah. So our voting and elections initiative, Votesave America, is going to be up and running again. It's a if you go to Votesaveamerica.com, it's a one-stop shop for all of your voting at elections needs. We try to get volunteers going. We had about a half a million volunteers in 2020. We're hoping to

have more this year, or 2024. And those volunteers, we sort of worked with different Democratic causes, candidates, the Biden campaign, Senate campaigns, House campaigns, grassroots organizations in states that we really needed to win. We've raised like $20 million dollars in the last cycle for Senate candidates and other candidates. So we give people ways to donate, ways for people to get involved, and ways for people to understand their ballot, not only to register to vote and help other people register to vote, but to figure out what's on their ballot, not just on the top of the ticket, but in down ballot races. So we'll be doing all of that and more next year.

We also have a book coming out that Tommy Vitor and John Lovett and I wrote with our friend Josh Holloway. It's called Democracy or Else, How to Save America in 10 Easy Steps. And it's going to be out June 25th, but I believe you can pre-order now, wherever books are sold, which is exciting. And it's just, it's hopefully a funny, useful guide

to what you can do to help save democracy. Awesome, and we'll put the links to both. Vote Save America and the book for pre-sales in the post description and the show notes of this episode. John, thanks so much for coming on, man. Thanks for having me, Brian. Thanks again to John. That's it for this episode. Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode,

please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a and check out brian tylercoen.com for links to all of my other channels.