The Daily Beast Podcast - A Supreme Court With Common Sense Would Disqualify Trump

Episode Date: January 7, 2024

Constitutional law professor Michael Gerhardt tells The New Abnormal that a plain reading of the 14th Amendment would deny Donald Trump’s bid to be president again. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy, and current cable news conscientious objector. I'm a former libertarian who now sits comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Kedden, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. Welcome back to an all-new bonus episode of the New Abnormal.

Let me thank you so much for being here. Today we have a very special guest, Michael Gerhardt. He's a constitutional law professor at UNC, and he's here to talk all about his upcoming book, The Law of Presidential Impeach, Guide for the Engage Citizen, and to explain all the nitty-gritty details of states removing Trump from their ballots. But first, let's have some fun. Folks, I am very happy to welcome to the new abnormal for the very first time, I believe. Michael Gerhardt, who is a constitutional law professor at UNC and is also the author of the forthcoming book, The Law of Presidential Impeachment, which is, oh, I don't know, perfect timing. Michael, let's start with the fact that where we left off before, you know, many hopefully had the ability to take a break for the holidays.

was that Colorado would begin what is maybe a slow domino effect. Maybe it isn't in your mind of deciding that Donald Trump, because of his involvement in the insurrection, has broken, you know, the law in terms of how it is laid out in the Constitution in the 14th Amendment, and they've removed him from the ballot. And, and again, a very long, drawn out opinion by the courts, they said, this is clear interpretation of what this says. I don't think that you need to be a law professor or a lawyer at all to understand the 14th Amendment. So give us your thoughts on that initial decision in Colorado and then what has been transpiring since. I happen to do that and I appreciate the opportunity to visit with you. So what we're talking about at the outset is the possible application of Section 3 of the 14th Amendment to Donald Trump.

Section 3 of the 14th Amendment provides, and I'm paraphrasing to some extent, that any officers, civil or otherwise, of the United States who have engaged in incitement or rebellion, are rendered ineligible to take another oath of office for some federal position. That's my paraphrase. And the question that's raised by that, I mean, there's actually several questions that are raised by that language. The first is whether or not it really does apply to a former or, for that matter, current president. The presidency is not mentioned in Section 3, and there are folks who interpret the language or most relevant language officers of the United States to not include the presidency. There are positions which are spelled out in Section 3, senators, representatives, for example, but the presidency's not mentioned.

So that's probably the strongest argument against the application of Section 3. to Donald Trump, I think the strongest argument for its application to Donald Trump or any other president or any other person seeking the presidency is that that interpretation I just gave you is absurd. And it's absurd because if it's actually the accurate interpretation, then the one office that the section doesn't apply to is the presidency. And that would have meant, for example, that Jefferson Davis could have run for and been elected president of the United States, even though he led a rebellion against the United States. I think that is really hard to accept. And therefore, the Colorado Supreme Court thought that the section does apply to Trump

and through its plain language, as you pointed out, would render him ineligible to run for the presidency because he's ineligible to take that oath again as president. There are other questions that arise with Section 3 of the 14th Amendment. For example, what has to be shown about that incitement or engagement in rebellion. The section doesn't tell us. One would imagine there'd have to be some kind of finding. And the Colorado Supreme Court relied on the trial judge's finding that Donald Trump had incited an insurrection. More recently, the main secretary of state has reached a similar conclusion, which would preclude Trump from being on the ballot as a Republican candidate for the presidency. I mean, Michael, it seems so very clear, right? Like, I get that his

lawyers, the Trump lawyers, are going after this very, I think, big stretch in terms of the fact that when we're talking about officer of the United States, that's because it is not explicitly spelled out that that means that the president isn't. Then they also said that the president does not take an oath to protect the Constitution, but to uphold the Constitution. I mean, the part and parceling and the jig that they are doing seems to me that it wouldn't go very far. And yet here we are sitting on pins and needles about how these quote unquote constitutionalists, these judges will interpret this finding. So can you talk to us about why we're sitting on pins and needles and why we can't be convinced

that it's very clear. Donald Trump stood. We see video. He pointed to the Capitol building. he said to these people, go take your country back. And after that, they ransacked the capital. He told them in a tweet, January 6 is going to be wild. And then we saw it play out. I don't understand. I mean, just make it clear for me how we're even part and parceling these things out and how it's just not fact on its face. I think we're talking about a matter that has a number of moving parts. So we just have to kind of keep track of which part it is we're trying to make sense. of. So on the one hand, and I'll probably end up with more than two hands, there is the argument,

which is not silly that is made that the phrase civil officer or officer of the United States does not include the president. After all, in the impeachment clause, that provides the president, vice president, and all civil officers. So there's no place in the Constitution where it would clearly indicate that president is a civil officer or officer in the United States. On the other hand, as you have just pointed out, it's a common sense understanding that this part of the Constitution, Section 3 of the 14th Amendment, ratified after the Civil War, was meant to prevent people who had waged rebellion against the United States, but who had initially been officers or officials in the federal government. And these people are not allowed back into government. That seems a fairly reasonable directive by the Constitution. So we're dealing to some extent with, let's call it, a very technical reading of Section 3 as opposed to a more commonsensical reading.

That is not unusual in constitutional law. And it is not unusual for the current Supreme Court, for example, to take those technical readings when it serves their purposes and not to follow common sense readings of the Constitution. At the same time, we are also aware of the basic facts involved. As you just point out, there's a video of Trump. There's a January 6 committee findings regarding Trump, numerous inside accounts about Donald Trump, all of which confirm that on January 6th, he was trying to wage an effort to keep Congress from its final certification of the 2020 presidential election. plainly interfering with a congressional process,

a plainly interfering with the constitutional process for selecting a president. And it's hard to imagine there's no means to hold that person accountable. And this is why I think the Colorado Supreme Court reached the conclusion that it did. Two other quick things. I'm up to four or five hands, I think, at this point. But one of them has to do with the Supreme Court's, and particularly Republican justices, emphasis, that we should always follow original meaning.

They're not necessarily following original meaning if they adopt this kind of technical understanding of the clause because that would undo the basic purpose of Section 3, which is to prevent anybody who was fighting for the Confederacy or supporting the Confederacy from becoming a federal official, including the presidency. And sometimes people refer to originalism as a way, I think, to drain a clause out of meaning or to narrow the meaning of the clause. And to drain that meeting and narrow that meaning as opposed to following the plain. meaning of the Constitution. And that plain meaning, I think, is pretty obvious to everyone. And so I think,

last but not least, we're dealing with, to some extent, a conflict between those who live in the real world and those who do not. And those who live in the real world are trying to read the Constitution plainly and reasonably. And others who argue that January 6th was just a peaceful tourists wandering through the Capitol. I think they also argue the tape is somehow fixed and all the rest. But I prefer to live in the real world. The law is a matter in the real world. And according to the real world constitution, section 3 of the 14th Amendment, again, we come full circle. That has language in it, which can reasonably be read as precluding Donald Trump from running for the presidency. The thing here is that you can remove him from the ballot, but it doesn't mean that he is,

ineligible to run for the presidency. And so the interpretation is that anyone who has participated in an insurrection cannot hold office, right? And yet what we know about these Supreme Court justices, because this will go to the Supreme Court, is that this six to three right wing, and in my words, not yours, mine, grifting Supreme Court, does not care. The decision in Colorado, they cited Neil Gorses. as a flag, pay attention. These are the words that came out of your mouth. This is what you said initially. And so when we come to you eventually, when this works its way back up to the Supreme Court, what is the decision that you're going to make? I have no faith, Michael, at all, that a decision is going to be made on plain, clear, practical, common sense with this Supreme Court. I also have no belief at all that this Supreme Court is interested in holding up democracy. When we're watching this slow role of now it's Maine and other states are saying, you know, they're going to remove Donald Trump and these lawsuits are going to wind their way up, what faith do you have in this system that is basically hanging on by a thread because four years of Donald Trump and Mitch McConnell

created hundreds of right-wing radicalized federal judge plants all over the country? Well, that's a good question. And I don't think I'd be teaching constitutional law or even writing about it if I lack faith in the durability of the Constitution and in the decency of the American people. But I'm also a realist, as I've indicated before. As a realist, I don't have any confidence or I share your lack of confidence that the Supreme Court will reach a so-called principal decision on this. I think the Supreme Court will likely find a way either to misread original meaning or to ignore the plain language, to reach a result that they and their constituents, they shouldn't have constituents, but they prefer. At the same time, I think what we're also

recognizing is that one of the things that has come along with Donald Trump is almost like a full court press to undermine people's confidence in American institutions. We've seen that recently with higher education. We've seen it certainly with Congress. We've seen it with the presidency. And one of the things I think that Donald Trump has been able to do for better or worse is to tap into some people's desire to burn the whole thing down. And with that, we have Trump telling the House Republicans impeach Joe Biden. There's no evidence, but House Republicans want to please Donald Trump. So they'll gut impeachment of any seriousness and just turn it into a political weapon, which is how they look at the world. The court itself has begun to lose

Americans' confidence, not just through the overruling of Roe v. Wade, but through the unethical practices of a number of justices who seem to be getting away with their unethical behavior. And so the court seems more interested in protecting itself than in establishing or reaffirming its integrity. That's not good. So what we're left with at the end of of the day, I think, is with the American people. And the American people have to decide what kind of future do they want. I think with Donald Trump, that future is going to be pretty nasty. And that future is going to require further degradation of American institutions. Or you can opt to be a little more optimistic, put a little more faith back in institutions, and get involved politically to protect our

democracy. I think that's what the American people have to choose over the next year. You know, I think that being a professor is very much about aspiration, the belief that we can be better, the belief that you can teach, you know, younger generations to have critical thinking and analysis and all of these things. And I wonder, as you connect with and educate Generation Z, what do you hear from them about? Because it isn't just the radical Republicans that want to burn down the systems. It's also people who have been fighting for

and have just recognized that inequities have existed for centuries and have actually gotten worse. And that with the overturning of affirmative action, Roe v. Wade, you know, now going after higher education, presidents and their lack of ability to have critical thought and democratic discussion on campuses. Like, this is continuing.

And there are people, young people, black people, brown people who want the system to be burned down. What are you hearing? This is my last question from your students. And how is it shaping your faith about how this year pans out? I teach at both the University of North Carolina Law School and at the University of Pennsylvania law school. I also teach in the college at the University of North Carolina, so I've got a variety of different students, and I don't hear just one thing from them.

I think to some extent, some students are just tuned out and turned off. I think there's another group that certainly would agree with you, no matter which direction is coming from, that, you know, we ought to just get rid of this constitution and put together a different one. And then I think there are students that split along partisan lines. And then last but hardly least, I think there are students that very much care about the future. of their country about democracy and about the Constitution. And part of what we're going to have to find out is which of those groups is going to become more politically influential over time. I do agree that teaching, which is what I do among other things, is an optimistic enterprise. It's our hope that education will enlighten and enrich people's lives. And that includes their

understandings of the American Constitution. And so I would hope that most people, certainly most, if not all, students would be open to that education. One of the toughest things to deal with is closed-mindedness and a refusal to be educated. I can't think of two worse characteristics for a president than close-mindedness and refusal to be educated. I think our greatest presidents, for example, Lincoln, were people who were willing to be educated, to learn. from their experience, to grow as Lincoln did over time. And I think that that, and so now the challenge, and I think Lincoln's life poses for us, is whether we can emulate that. Can we be willing to be educated to learn about facts, not fiction, and to learn about history, which by the way, is a

set of facts, and not the past that we wish it were, can we take all that learning and build a foundation on it for the future. That's the challenge that's really behind all these efforts, whether it's Section 3 of the 14th Amendment, whether it's impeaching Biden, whether it's further sort of illuminating Donald Trump's corruption, whatever it may be, the ultimate objective, I would argue, has to be building a better future for America. Michael Gerhard, thank you so much for making the time for the new abnormal. Really appreciated you in this conversation. Well, thank you. I enjoyed it. Thank you. Hope you enjoy checking out this episode of The New Abnormal.

We're back every Tuesday, Friday, and Sunday. If you enjoyed it, please share it with a friend and keep the conversation going. This podcast is a Daily Beast production with production by Jesse Cannon and Seamus Calder. Want more great listens? Check out our comedy podcast, The Last Laugh, and our star-studded The Daily Beast podcast at the Daily Beast.com slash podcasts. If you enjoyed this episode, consider becoming a Daily Beast subscriber. subscribing is the best way to feed the beast and support all of your podcasts as we cover what might become the darkest timeline head to the dailybeast.com slash membership slash podcast

and sign up today.