The Bulwark Podcast - He's Staying on the Ballot

Episode Date: February 8, 2024

The Supreme Court sounded ready to reject a Colorado ruling that barred Trump from the state ballot. Plus, reading the tea leaves on the next phase for Trump's immunity claim, and the thin factual record against Fani Willis. Ben Wittes joins Charlie Sykes for The Trump Trials.

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be your authentic self so you can stop hiding. Because masks should be for Halloween fun, not for your emotions. Take off the mask with BetterHelp. Visit betterhelp.com today to get 10% off your first month. That's betterhelp, H-E-L-P, dot com. Well, I just want you to know, Ben, that I put my going to the Supreme Court time suit on today just as an act of respect. I felt I needed to get dressed up to listen to oral arguments in the United States Supreme Court about the Constitution. I mean, this shows the difference between the two of us. I put on a dog shirt while wearing sunglasses and showing the victory sign and listened to the oral argument while walking from my house to Brookings. Okay, so I was able to catch most of it. I had some other things I had to multitask, but I have to say that, bottom line, could just like, you know, cut to the chase here, spoiler alert, because I just received a text message here on my phone. So it must be true. Text message from you, Ben.

Total vindication for Charlie Sykes' position at Oral Arguments. Yes, I think it was. Okay. I wouldn't have claimed that for myself, but feel free to, you know, expostulate on that. Yeah, well, I understand it would be something that you would want to explore. But as I understood the Charlie Sykes position, your view has been, this is an excellent theoretical legal argument, something that I understand why law professors of the left and right would be very interested in.

And I can totally understand why it makes for great law review articles and even op-eds and historical exegesis in magazine articles and whatnot about all kinds of things. But if you actually put it in front of the Supreme Court, you're going to get something like a nine to nothing opinion that says Trump wins. He gets to be on the ballot. I didn't say nine zero. I'm not going to claim that I ever said that. But you clearly said it wasn't going to be a close thing.

It was just no way. I mean, I feel like I'm like the lone guy on some of these shows is like, well, you know, this brief is so airtight and this is going to happen. And there's no way that Kavanaugh is going to be, I'm saying, guys, seriously, everybody deep breath. This court is not going to throw Donald Trump off. It is just not going to happen in any known universe. So, so tell me how it went that made you feel compelled to write me a tweet saying that my position was totally vindicated. How bad was it? I mean, if you are the Anderson petitioners, the Republican voters in Colorado who are trying to keep Trump off the ballot, I think the technical term would be a total shellacking at oral argument. They may have one vote in Judge Justice Sotomayor. I'm not sure. They certainly don't appear to have Katonji Brown Jackson. They don't appear to have Elena Kagan. They don't appear to have any of the conservatives.

And so I think you are looking at a, they may disagree about the reasons. You may have a lot of split about the rationale. And there doesn't seem to be anybody on the court who is going to argue that this is not an insurrection or Trump didn't engage in it. It doesn't seem like they're even interested in questions of whether Congress has to pass some kind of legislation in order for states— Enabling, yeah. Well, either a kind of enabling legislation or create its own process for adjudicating these things or permit states to do it. And they seem to have very different arguments for that, but they all do seem to be crowded around that position. And some of them, including Justice Katonji Brown Jackson, seem very attracted to this question of whether the president is covered by it at all. We don't know how unanimous it will be or whether they will find a joint rationale

here, but I think it's very clear that there is not going to be anything like a majority for removing Donald Trump from the ballot in Colorado. The main headline is that Donald Trump is going to win this case. We don't know absolutely what the grounds are, but that it's not going to simply be the conservative justices who are running cover for him. It's going to be across ideological lines. So let's just break down from the point of view of the, let's call it the Colorado case, the people who want to, who say that the plain language of the 14th Amendment should be applied to disqualify Donald Trump. Where did it run off the rails? What really went wrong for them? I want to stress that I don't think that they failed in arguing that there was an insurrection and Trump engaged in it. I don't think the court is going to

find that either of those things is false, although they won't affirm them. So we wanted the headline, Trump not insurrectionist court rules. So that's not where we're going. It's going to be bad, but... That's not what we're going to get. I'm sure it's how he's going to frame it, but it's not what they're going to rule. There are two giant threshold questions here. One is, and this question is so dumb that, I mean, I will only go into the details of it if you want to discuss it, but it's a deeply uninteresting question, which is whether the phrase officer of the United States in Section 3 and the phrase office under the United States in Section 3 include the president? And it's a really dumb question, and everybody agrees that it should include the president, but it's not really clear that it does, blah, blah, blah, blah, blah. Well, it's the easiest off-ramp, right? If you want to do a Jedi judicial mind trick, that would be the easiest way of getting them off this, right? If you want to do a Jedi judicial mind trick, that would be the easiest way of getting them off this, right? Well, one of them. Okay. I mean, it has some disadvantages,

like it has implications for other provisions of the Constitution, particularly the Emoluments Clause, which, you know, we have to think about with respect to Trump. But the other one, which is the one that I think they're most focused on, or at least the largest number of them are most focused on, is this question of, okay, so the states ratify the 14th Amendment, including Section 3. And the question is, can a state enforce Section 3 through its ballot provisions against a federal official, or does Congress have to enforce it? And it's a much more complicated issue. It's a much more interesting issue. And that is where I think the most justices are the most focused, albeit with slightly different shades. But I think you can see that's where Clarence Thomas is focused. It's definitely where Brett Kavanaugh is focused. It's where Elena Kagan is focused.

I think it's what the chief is thinking about. Alito is thinking about something similar. So you can kind of count five votes who are thinking about that problem, albeit with slightly different inflections. As I was listening, it was an interesting argument because they're talking about the history of the 14th Amendment and the historical context, and that this was designed to limit the state's ability to do certain things. So to uphold Colorado would be, in effect, to turn things upside down, right? Would allow a state to affect a federal election in ways that were not envisioned. Am I getting this right? Yes. So there are several distinct components of this problem. And let me tick them off in

no particular order with the justices who were dealing with them. Kagan and Alito are both from different points of view saying, hey, wait a minute, if we let Colorado do this, then you're letting basically one state disproportionately determine who's president, the first actor, right? And what if it's not Colorado? What if it's, you know, Michigan or a state that's actually a swing state, right? Which, by the way, is obviously not what the authors of the 14th Amendment intended in the years after the Civil War, where they did not want states to go their own way. Exactly. And Kagan definitely did it with actually with the inflection that you're describing, which is, wait a minute, the whole point of the 14th Amendment is to take power away from states, that doesn't seem very democratic. And by the way, states have completely different procedures. So that's one flavor of the argument. A second flavor of the argument is

the one that Brett Kavanaugh pushed. I think Kavanaugh was the most explicit about where he's coming from on this. He said, look, you know, in the non-binding case from the period, which is one year after the 14th Amendment is incorporated into the Constitution, Chief Justice Chase writes this opinion that is called Griffin's case. And it's not binding because it's not a Supreme Court opinion, but it is a good reflection of how people understood it at the time, he says. And Congress, Griffin's case says basically that Congress needs to pass enabling legislation to implement Section 3, and so Congress responds by doing that, and that legislation remains in effect until 1948, and nobody between then and now has suggested, until now, has suggested that

that process was not meaningfully required. And so his argument by a different means is, hey, if you look at the history here, you need implementing legislation, whereas Kagan and Alito more seem to be saying, without some congressional uniformity, you're going to have states flying all over the place, or else exercising way too much authority over the national election. This struck me, and this is a point that I heard because I was trying to gather people's reaction, like, what do people think of this? Because I thought it went pretty badly. And I wanted to say it's just me because I've been saying this and

turned on SiriusXM, listening to the MSNBC feed. And Andrew Weissman is there, and a lot of respect for Andrew. He agreed with your analysis, by the way, about how it went. Oh, I don't think anybody's going to disagree. He made the point that the attorneys and the justices were focused much more on the dangers, the danger of upholding the Colorado ruling and much less concerned about the danger of not implementing the 14th Amendment. So, you know, in the think tanks and op-ed pieces, you know, people have been talking about, you know, how dangerous it is not to apply the 14th Amendment to Donald Trump. But in court today, the danger was really on the other side. And I think that's probably going to take some people by surprise, people who haven't made the

distinction between what you can say in a the distinction between what you can say in a think tank and what you can say in a courtroom with that kind of breakdown of justices. What do you think? I think that's right. And I also think that the fact that the, again, with the possible exception of Justice Sotomayor, the liberal justices didn't sound all that different from the conservative justices here. That was really striking. That has got to have come as a surprise to some people who are watching this. Particularly Justice Katonji Brown Jackson, I thought was, like her view surprised me, to be honest. Which view surprised you? Because this is really interesting.

She seemed quite attracted to the Josh Blackman, Seth Barrett Tillman, officer of the United States rabbit hole, which I don't think is the appropriate disposition of the case, but it's also clearly should suggest to me somebody looking for an off-ramp rather than looking for, you know, okay, what was this provision designed to do? Well, my takeaway from this, first of all, there are not five votes to affirm the Colorado Supreme Court in removing Trump from the ballot. There may be eight or nine votes for reversing that. That's takeaway number one. Takeaway number two, that holding will not answer the question of whether Trump is an insurrectionist who is disqualified under the 14th Amendment from holding the Office of

Presidency again. It will be on procedural grounds that will leave it to, probably leave it to Congress if it wants to, which it won't given the composition of the House of Representatives, to create a procedure for adjudicating questions like this, which is to say it will punt it to a part of the field that is unoccupied. So that means as a functional matter that Trump will be on the ballot, assuming he is nominated by the Republican Party, and that the combination of the electoral process and the criminal process are the mechanisms by which his return to the presidency will be encumbered, which is kind of what we knew anyway. For anybody who was laboring under the illusion

that the Supreme Court was going to save us, dispense with the illusion. This message comes from BetterHelp. Can you think of a time when you didn't feel like you could be yourself, like you were hiding behind a mask? BetterHelp online therapy is convenient, flexible, and can help you learn to be your authentic self so you can stop hiding. Because masks should be for Halloween fun, not for your emotions. Take off the mask with BetterHelp. Visit BetterHelp.com today to get 10% off your first month. That's BetterHelp, H-E-L-P dot com. Okay, so part of my skepticism about this is that, look, the justices are, you know,

legal players, but they also are political players. And this is not a great revelation. I mean, they are aware of, you know, questions about legitimacy and the controversies. The 1930s, the great story about how, you know, the court will sometimes follow, you know, election results. And again, this is purely speculative. So I'm almost hesitant to do this. The other big case is the immunity case. And you and I, I think, agree on this one, that that's always been the main event. The main event is the question of presidential immunity and the timing on that. The justices know that they can hand Donald Trump a victory on this, but they also know that they are also then gives them a little bit of wiggle room to go hard on the immunity case. I'm not articulating this well, but I'm thinking that they can split the baby.

I mean, because there's no way that Donald Trump wins the presidential immunity case, especially after the D.C. circuit. But in many ways, knowing that they're going to take this position, does it make it easier for them to slam dunk that case too? Like not even take it up? Right. So this is a really interesting question and it requires a collective psychoanalysis of nine people of very different psyches. That's what I'm looking for here. But I think the answer to your question is yes, that it makes it easier. In my view, the proper disposition of the cert petition that's coming from the D.C. Circuit or from Trump over the D.C. Circuit opinion, and more particularly the petition for a stay of the D.C. Circuit opinion is no stay and cert denied. So you can resolve it in two very brief orders. And then Judge Chutkin, the district court judge who has that case, gets to set a trial date, right? And so, you know, if you were to, as a court, issue a nine-nothing opinion in Trump's favor on Section 3 and then quietly not take up the other thing. He might, you know, cheer and bleat his whole way to trial.

My sense is that it probably does create a little bit of latitude. That said, the real question with the D.C. Circuit petition, and this is, I'm going to reflect a certain cynicism about the justices here, although not the political cynicism that a lot of people have, is whether they're willing to let the last word on this subject until the end of time be the word of the D.C. Circuit? Because these questions almost never come up. It's, you know, in 200 plus years of the republic, we've never prosecuted a former president. So if you're a justice of the Supreme Court, do you want Judges Childs, Henderson, and Hann to, you know, have the final statement on this very big and important, or do you want your stamp on it? And so the question is, are four of them arrogant enough to say, because it only

takes four to grant cert, are four of them arrogant enough to say, well, of course, the D.C. Circuit's right in the big picture, but we should really be writing this opinion. So grant cert so that it's an opinion of the Supreme Court. I have not heard anyone else other than you make this point that there's a certain ego there that this is the big case, but maybe they've had their fill of big cases. Now, walk me through this, because I think I understand this. You need four votes to grant cert, which is basically, okay, we are now going to decide this question, but it takes five votes to stay the order. I mean, because the DC circuit, am I right about this? Yes. Okay. So because the DC circuit actually did something very interesting in the way that they, that they issued this ruling and you folks at law fair nailed it right out of

the box. And I'm not sure that everybody has fully understood how significant the way they came down with that ruling was for speeding up the trial. Explain. Right. So this is really interesting because it's not in the opinion. Yeah. It's only in the judgment, this one page order. And what they did was they said, and this was an effort to basically say, don't play games with the timing of this, Mr. Trump, defendant Trump. Number one, we're going to issue the mandate on February 13th. So that means unless something happens, Judge Chutkin on Tuesday the 13th is getting the mandate and can schedule a trial. Number two, we will stay the mandate if you notify us that you are seeking a cert petition, but not if you notify us that you're asking the full D.C. Circuit to review the case.

You don't get to do a second step with looking for en banc review here. But if you go to the Supreme Court, we will grant you a stay for as long as it takes the Supreme Court to decide whether to grant you a stay. and, in other words, another week or so, right? So you have a stay while you ask the Supreme Court to stay the mandate so that they can consider a cert petition. And then either they'll grant the stay, in which case five of them have to vote to grant a stay, or Judge Chutkin gets to set a trial date. And then they can decide

whether they want to hear the case in the meantime. So it's basically the DC Circuit saying, we're not going to help you play games with delaying the trial. Exactly, which I thought was really interesting, because there have been some hand-wringing about what's taking so long. I've been assured that, guys, you understand that courts don't work at the same space as journalism. This really was pretty fast. It was pretty quick. They really weren't of her work, and I will confess that I did have some moments where I was thinking, what is she up to here? I thought this opinion amply justified the time that the D.C. Circuit took to issue it, and I think all three of those judges did a superb job, given the time constraints, taking the president's argument seriously. I think this is a much better opinion than the district court opinion that it

reviewed. I am very confident that there are not five votes on the Supreme Court. Oh, you are? To reverse it, there's no chance. But the stay, can we just focus in on this? Whether they will hear it and whether they will stay the mandate while they hear it, there's no chance. But the stay, can we just focus on this? Whether they will hear it and whether they will stay the mandate while they hear it, that I don't know. But this is going to stand up. Okay, but this is the key question. I mean, let's focus on this monumental decision that may be determined by one justice, the difference between four and five. if in fact they do not grant a stay, Judge Chutkin is going

to go ahead with the trial. It's not going to be on March 4th, but there's going to be a trial. There's definitely going to be a trial, right? Yeah. I mean, it could be as early as mid-May. Exactly. If the court, however, does grant the stay, this thing could drag on and on and maybe pass the election because they might put it off to the next term. So, I mean, one justice deciding stay or not stay could in fact determine the outcome and the future of the American presidency, right? I mean, it's like, you know, goes one way, we have a trial, goes another way, Donald Trump may go all the way to November without a trial or a conviction. Theoretically possible. I think, in fact, unlikely. The justices are very savvy political players. The chief justice is no, I don't think would want the court to be seen as wrapped up in Donald Trump's electoral machinations. And they are also

aware of, clearly, we know from today, they are looking for ways to be unanimous and to not meddle in the election. And so delaying his trial until after the election would be like a really bad move. And so I think if they were to hear it, they would hear it quickly and do what they did in this case, which is say, hey, we owe this our review, but we are not going to treat it on the usual regular docket. I think that's what they would do. And I think as long as they took less than two or three months to do it, you would still have a trial before November 5th. That said, your point is, it's certainly possible. Well, as you point out to me, you know, Justice Roberts is a savvy political operator. And

the nightmare scenario for the Supreme Court is you throw out the 14th Amendment case, and then you follow that up by basically destroying the criminal cases against Donald Trump. Two words, cert denied. That's it. See, this is what it comes down to. I know when you and I write the screenplay for the movie, this is going to be the moment. It's all going to turn on that one justice deciding. It could be the title. It could be the title. It could be cert denied or cert. Just make it cert.

Who plays the justice? We have to work on that. Okay, so this seems less significant, but Donald Trump continues to celebrate what's going on down in Georgia. Fannie Willis has acknowledged he had a personal relationship, answered the charges lengthy, lengthy, brief about that. I just want to say, Charlie, this is the first time in the history of the Bulwark podcast that you have gone from Supreme Court oral arguments and cert consideration straight to divorce court in Georgia County. And I just want to take note

of that because it's your second to last day hosting the podcast and we're still doing posts here. And the CEO is able to do that. So what do you make of all this? We've been sort of tap dancing around this. We wanted to hear Fannie Willis' story, wanted to hear the response. Now we got it. Where are we at? Where are we at then? So I got to say, after reading Fannie Willis's response, I am offended on her behalf by this particular turn in the litigation. The allegations that were made against her were that now I feel much more comfortable talking about them because she's had a chance to respond and she has responded and I think very effectively. The allegations against her are A, that she was secretly having

an affair with this guy, Nathan Wade, whom she then hired as her special prosecutor, overpaid because he was quite unqualified for the position. And then he kicked back money to her in the form of lavish vacations. And that thereby created a conflict of interest in which they both had an incentive to keep this money train going because they could go to Napa Valley and on cruises and to Aruba and the like. In her response, which includes a sworn affidavit from Nathan Wade, she basically attacks every component of this story. So, yes, they have a romantic relationship, or at least they did at one point, but it began after she hired him. So, she didn't hire somebody she was having an affair with. It's basically a workplace romance. Office romance.

You know, it's not best practices, I'm sure, for Fulton County, but it's perfectly ordinary. Number two, he is quite qualified, and one of the things the brief does is kind of lays out his history and qualifications. But number three, and importantly, she was not his first choice as special prosecutor for this. And in fact, he helped her try to find other people who then turned her down because of the security issues associated with taking this case, which he has done at a fraction of his regular billing rate. So, it's not a lavish sinecure for him by any means. Number four, when they have traveled together, sometimes he is paid, sometimes she is paid, and they're sort of roughly even, like they seem to have rebutted that kind of kickback scheme allegation.

And so I was left after reading her response, thinking that this attack on her was, first of all, not supported by the factual record, and secondly, kind of reckless and personal. And while I don't really approve of the speech she gave in church, where she sort of suggested that it was racially motivated, I do think it is the kind of thing that, you know, if you're going to accuse a prosecutor as a public official of engaging in a kickback scheme, you better have a damn good factual record for that. And I do think this was made with a very thin record. It does not establish a conflict of interest. And if I were Judge Scott McAfee, who has this case, I would be annoyed at the degree to which these defense

counsel have created a media circus around a very thin factual record. It's personally messy, but clearly not dispositive toward the case. So what happens now? How does it play out? There's going to be a hearing and the judge is going to decide what? Right. So Judge McAfee has a hearing scheduled for the 15th. The defense lawyers have tried to subpoena both Nathan Wade and Fonny Willis to get them to testify about their relationship and the money. She has moved to quash these subpoenas as well as subpoenas to other people on her staff, and has argued that the factual predicate for the motion is inadequate to justify any of this, and that Judge McAfee should reject the motion without a hearing. And so the first question is, does he feel the need to develop the facts further, in which case there will be a hearing. Second question is,

if he holds a hearing, what testimony or information will he require? And then the third question, which I think is the answer to which is no, is does he find that there's a conflict of interest here that gives rise to relief in any way for any of the defendants or disqualification of the DA or Nathan Wade. And I think the answer to that is pretty clear. Okay, very briefly, where are we at with Eileen Cannon? It does seem as if things are coming to a head. She has been, you know, dragging her feet on all of this. It's getting to the point where now there's discussion about emergency action by Jack Smith to prevent the release of sensitive information. Okay, remember, I'll just cut right to the chase. Is there just a breaking point where they decide

that we actually have to challenge her sitting on this case, or are we just stuck with Eileen Cannon? I know we've discussed this in the past, but I mean, my sense is we're stuck with her. But what is the breaking point? Well, so you're stuck with her until she does something. Well, one of two things. Either she does something in the context of the Classified Information Procedures Act, which is a specific statute for managing classified information in criminal cases. And one thing that is interesting about this law, which is abbreviated as SIPA, is that rulings under it are appealable on an interlocutory basis.

That is, you don't have to wait till the end of the case to appeal them. So once she makes a substantial SIPA ruling, if it is nuts, you can take her up to the 11th Circuit on that. And once you're up at the 11th Circuit, you can say, and by the way, this judge is really biased against us. Can you help us and do something about it? Well, and they're not fans of her up there, are they? I mean, the 11th Circuit has smacked her down in the past. So this is not a fan gallery for Eileen Cannon up there. Exactly. I think one thing that the government is waiting for is a SIPA ruling that is appealable and that is appealable in a fashion that you can make some broader points about her. The second possibility is that she does something so outrageous outside of the context of SIPA

that you can bring her up on the basis of what's called a writ of mandamus, which is basically what they did in the context of the earlier litigation. But that's an extraordinary remedy, and the judge has to be kind of wildly out of line before you can do that. And so I think their posture, which is I think the right one, is work with her, explain everything really patiently to her, file briefs, and then wait until she does something really nuts, and then go up to the 11th Circuit. And then maybe then you have a record to have her removed from the case. Okay, we're gonna have to leave it there because we got kind of a late start waiting on the justices. We want to get this podcast out today, our penultimate podcast. Once again, Ben, it has been great doing this with you. I remember the first time when you and I spoke about this and said, hey, how about doing a special once a week podcast on the Trump trials?

And, you know, since then, we've never had a dull moment, have we? It has been an amazing pleasure, Charlie. And it is with great regret that I do not get to say we'll be back next week and we'll do this all over again. I want to echo a lot of the things that Tom Nichols said about you and this podcast yesterday. I wrote some of them on Dog Shirt Daily a few days ago. Very grateful. I will leave it at that. But Charlie, what an accomplishment this podcast has been. And it has been a super honor and pleasure for me to join you on it on a semi-regular basis and then on a very regular basis on the Trump Trials sub-podcast podcast. As I told you before, I can still remember when I was thinking, boy, am I ever going to actually get to meet Ben Wittes? Never imagining that we would be doing what we have done or have the relationship we have.

So sometimes things turn out well. So, Ben, I would like to say that we're going to be back next week, but that's all there is. Now, I'm going to be back tomorrow, but you and I, you know, I'm going to have to catch under the palm trees. It'll happen. And we will. I think the first time we actually met was over drinks at a PNP gathering. And I'm sure we will do that again. I am counting on it. And thank you all for listening to this latest episode of The Trump Trials. I'm Charlie Sykes. I will be back tomorrow for one last episode with some very special guests. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.