Trump's Trials - Georgia on our minds

Episode Date: February 4, 2024

This week on Trump's Trials, guest host Miles Parks and Domenico Montanaro are joined by constitutional expert and lawyer Kim Wehle.Now that Fulton County District Attorney Fani Willis has admitted to having a relationship with prosecutor Nathan Wade, there continues to be calls for her removal from the Georgia election interference case against former President Donald Trump. Legally she may not be required to step aside. But politically, the relationship complicates the perception of the case in the public eye. We also preview oral arguments taking place on Thursday at the Supreme Court in the Colorado ballot case that could determine whether Trump is eligible to run for office. Topics include: - Fani Willis' motion - What's next in the Georgia election interference case - Preview of Supreme Court oral arguments - How section 3 of the 14th Amendment applies Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Fawnie Willis admits to having a relationship, but she denies misconduct. From NPR, this is Trump's Trials. I'm Myles Parks. Scott Detrow is on assignment. We love Trump! This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. It has been a busy week in the world of Trump's Trials. First, after weeks of silence, Fulton County District Attorney Fawnie Willis filed a 176-page motion in which she admitted to having a relationship with Prosecutor Nathan Wade.

Wade is leading Georgia's election interference case against former President Donald Trump and more than a dozen other defendants. and more than a dozen other defendants. In the motion, Willis says there's no truth to the claims being made by one of Trump's co-defendants that she had benefited financially from the relationship with Wade. We're also looking ahead to the Supreme Court. On Thursday, February 8th, the court will hear oral arguments in the Colorado ballot case, which could decide whether Trump can even run for president at all. The court took up the case after Colorado's Supreme Court disqualified Trump from being on the primary ballot because of his actions during the January 6th insurrection. A clause in the Constitution specifically bars insurrectionists from holding public office. So lots to discuss

there. And as always, I'm joined by my colleague, senior editor and political correspondent, Domenico Montanaro. Hey, Domenico. Hey, Miles. So catch me up in the big moments from this week in Trump's trials. Yeah, I mean, there's a lot. You know, it's hard not to see this case in Georgia through a political lens. You know, it centers around Trump asking Georgia officials to find him more than 11,000 votes in 2020. You might remember. I do remember very, very, very well. You know, and this was seen as one of the strongest criminal cases against Trump,

because remember, it's all on tape. I just want to find 11,780 votes, which is one more that we have. Now, instead, everyone is talking about Fannie Willis and her personal life. You know, for Willis, she sees the surfacing of these allegations as not much more than politics and said so in the opening paragraph of her motion. Here's what she wrote. While the allegations raised in the various motions are salacious and garnered the media attention they were designed to obtain, none provide this court with any basis upon which to order the relief they seek. And what is the relief they seek? To have the case or Willis

herself dismissed. But they certainly have muddied and likely delayed the case and have raised a lot of questions about Willis's ethics, all of which benefits Trump. Lots of legal issues and political issues discussed with the Georgia case and the one before the Supreme Court. And we'll get back to all of that with constitutional law expert Kim Whaley of the University of Baltimore when we come right back. This message comes from NPR sponsor SAP Concur. Global head of sales Ryan Demaree shares how SAP Concur Solutions can help solve specific problems and support long-term growth. We have a travel booking tool, we have an expense tool, and we have a vendor invoice tool. We very much so take the approach of we want to meet businesses where they're at. You can start with a piece of it and grow.

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More at Kresge.org. And we're joined now by Kim Whaley. She's a constitutional expert and law professor at the University of Baltimore. Hi, Kim. Hi there. Thanks for being here. It's a big week with lots to discuss, and I think we should start with the Fonny Willis filing, this 176-page long document. What did you make of it? What did we learn here? Well, what I made of it is that there's a lot of resources now going to this sideshow that's very unfortunate. When I say resources, there were lawyers that spent a lot of time filing this opposition brief about this relationship, spent a lot of time filing this opposition brief about this relationship, appearance of a conflict of interest between her and this prosecutor that she admits now in the filing she had an intimate

relationship with. Two new facts. One is that she didn't have it apparently at the time he hired her and some of the trips and things she paid for herself, legally they make a strong argument that this isn't a conflict of interest that would disqualify her. Usually it has to be much stronger. So it's not, I think, a basis for her to be disqualified, but it's damaging from the public's perspective. It's just an appearance of a lack of judgment, frankly. And once again, we're seeing in one of these cases, you know, process just that's just delaying things potentially. And that for Donald Trump, who's a defendant, obviously, in this case, as well as January 6 and two others, delay is his best friend. Delay is his best defense on the merits and the facts.

his best friend. Delay is his best defense on the merits and the facts. Right. Domenico, I mean, every time we talk about anything on this podcast, there's always the legal ramifications and the political ramifications, right? And so do we have any sense of what the political impact so far has been of what Willis disclosed yesterday? Yeah. And to just pick up on some of what Kim was saying, I mean, the fact is a lot of politics is about character. And part of what you want to do is disqualify somebody else's character to say that, you know, they aren't running something that's above board. And if Trump can do that to muddy the waters, he can try to continue to make his case that, you know, he's being politically pursued, and that this is just, you know, in his words, a witch hunt. This was or is one of the strongest cases against Trump. I mean, remember, he's on tape, like we heard, trying to overturn the results of an election that he lost. So the fact that we're even discussing the nitty gritty details of this personal relationship between Willis and Nathan Wade is the very kind of distraction

meant to muddy the waters that Trump wants. You know, it could mean another delay where we potentially, you know, don't see a verdict before the election, which by the way, lots of polls have shown that a conviction could make a difference with voters. Well, and it's not going away, right? I mean, I think that was one of my takeaways from this week is we started seeing the snowball start to build because at the Georgia state level, and then also Congress, the House Judiciary Committee says they're going to subpoena her for a separate campaign finance matter. So there is this sense that Republicans at the state level and nationally are seizing on this. What do you think her future

is long term? I mean, is it tenable for her to stay on this, Kim? Well, there are two options. One is the judge takes her off, which I think on the law, as indicated, is unlikely. Or she could resign. That would be option number two. Either way, it wouldn't make the case against Donald Trump go away, but it could delay it well past the election and create this impression, as we've been talking about, of corruption. we've been talking about of corruption. The thing to keep in mind on the law as well, though, is that even if he wins the election in November legitimately and takes office in January, his ability to call off this prosecution, as well as the Alvin Bragg one in Manhattan, does not exist. With the federal claims, he can cancel them, right? He'll be in charge of the Justice Department. He does not have that power with the Georgia case. He does not have that power with the Manhattan trial, which probably will go before November. So even if she gets pulled off for one reason or another and he wins the presidency, Georgia could still be prosecuting a sitting

president. What do you think, Domenico? Do you think it's politically tenable for her to stay on? No, I mean, some are arguing that she should step aside and take leave because in Georgia, if a DA is disqualified, then their entire staff is disqualified and could bring the entire case to a halt. You know, if she were to step aside, that wouldn't happen. It could continue under someone on her staff, you know, in theory. So she's taken a bit of a risk sticking with this case. And even if she's disqualified and someone else is appointed by this panel that Kim was talking about, you know, would they prosecute it to the same extent? Would they have the same, you know, attempts at going after Trump or the strength or length of sentences that they would be seeking? It's a big question. And Willis and Wade, by the way, don't show any signs at this point of stepping aside. That's what this filing really was about. And I have to say, they argued in the filing, just to make things even messier, that there

are personal relationships going on on the other side among lawyers for some of the co-defendants who might actually testify against each other on the Trump side of things. And as one of our colleagues said, this is like all turning into the Grey's Anatomy of the legal world. That's what I was going to say. It's like so clearly in 10 years going to be made into like a daytime television show. It's like it's clearly writing itself. But I do want to turn to the other big story in Trump trial world, which is the Colorado ballot case. We're going to hear arguments in the Supreme Court on Thursday about whether Trump can be disqualified for his actions related to January 6th. Essentially, potentially getting answers to this big question we've been talking about for

three years is, is Donald Trump considered an insurrectionist? Kim, can you briefly lay out the case and explain how the 14th Amendment plays into this? Sure. So the 14th Amendment itself was ratified after the Civil War, and it has a section in it that says, and I'm paraphrasing, if you took an oath to uphold the Constitution and you engaged in an insurrection or rebellion, you cannot hold office again. So the framers of the 14th Amendment here were worried about people that were part of the Confederacy from making their way into the reconstructed government and throwing bombs and basically disallowing the unification of the nation. And the argument being made across the country in various states is that, and there are three main provisions in section three, that if you're, in this case, an officer of the United States, and you engaged in an insurrection, that you're disqualified. So the argument is presidents are officers of the United States,

disqualified. So the argument is presidents are officers of the United States, that January 6th was an insurrection, and that Donald Trump engaged in it. So therefore, he cannot hold office. There are some technical arguments based on these three words. The argument is, oh, well, if you actually look at the provision, it doesn't spell out specifically that presidents are officers of the United States, so they're not covered by Section 3. There's an argument that, well, they really meant the Civil War, even though they didn't say the Civil War, and so maybe we're not in insurrection land with January 6th, and that Donald Trump's lawyers are making the argument that he didn't engage because he stayed in the sidelines. He didn't actually join the hand-to-hand combat at the Capitol. Those are the three issues. The Colorado Supreme Court held that he did all those things.

He's an officer. He engaged in insurrection. In Maine, the Secretary of State determined the same thing. And the thing to keep in mind here, there's another part of the Constitution section of the 14th Amendment, Section 5, that says Congress can pass a law that allows you to go and challenge his eligibility across the country. And so another argument is that the only way to get Section 3 litigated is if Congress steps in. I mean, I frankly don't think any of these are good arguments legally, and we can talk about it. There's a perception in the public that somehow this is going to deprive people of their votes, and that this is somehow anti-democratic. But, you know, there are lots of qualifications to get on presidential ballots on a state-by-state

basis, and no one's holding that unconstitutional. So in my mind, again, this is a bit of a sideshow that gets us off the ball, but it's a huge, huge issue. And the Supreme Court now is going to step in on all this stuff. Which of the arguments, Domenico, do you feel like is the strongest? I mean, do you think there's one that they're going to be focusing on the most? Well, I don't know about what's strongest or not, but I do know a little bit about how John Roberts thinks about the court, the chief justice of the court. Which is pretty important, yeah. He really doesn't like getting involved in politics. He doesn't want the court to appear to be political, despite the fact that the court has to decide things that, you know,

shapes social policy for a generation that are inherently political. But if he can figure out a way to weave a needle and sort of like thread this line where they can sort of dismiss this on a technicality and not have to weigh in on the insurrection piece, that's where I think that they're most likely to kind of go. And when we're talking about that, we're talking about this argument that a president of the United States is not an officer, quote unquote. And there's some argument that there's a bit of precedent to say what an officer is and that an officer is not the president of the United States as, you know, much as that doesn't seem to make sense, you know, into a normal argument that like, obviously,

the president is the chief executive officer of the country, which is also noted in some places, but the fact that a lot of people will say that the officer really is just about people who are appointed in the federal government. When it does seem like a big deal, Kim, and tell me if I'm thinking about this correctly, but Donald Trump was impeached for his role in and then acquitted by Congress after January 6th. Is that going to play a big role in how the Supreme Court views whether Donald Trump is an insurrectionist? Well, that's another argument that you put your finger on that that the Trump team is making. Well, that's another argument that you put your finger on that the Trump team is making.

And it's, again, all these arguments are really technical nuances that very lawyerly, right? So to Domenico's point on officer, you know, the Constitution multiple times in other places equates presidents with office and officer. So these are very technical arguments. And Donald Trump's making the argument that if you read the language of the impeachment clause in Article 2, which goes on to say that you can still be basically held criminally accountable notwithstanding impeachment, he's saying that that means that you have to be convicted of impeachment before you can even be criminally prosecuted. I think based on the plain reading of that text, I think it's wrong. I think based on the plain reading of that text, I think it's wrong.

But these are kind of like the lawyerly gymnastics that are happening that, as Domenico mentioned, there are a bunch of various off-ramps that the court could take. I think the best one would have been not to take the case at all, which it didn't have to. I do want to make a point on the argument, which is really kind of circulating that there needs to be a criminal conviction. And it's absolutely one of the arguments that people are making. There's a difference, you know, when it comes to something like this, so people understand between, you know, why you would need due process and proof beyond a reasonable doubt in a criminal context. That's because when people are going to trial on a criminal charge, they could lose their liberty. They could go to prison, right? And that's what's happening with Donald Trump. Here we're talking about not being able to basically apply for a job. So I don't Colorado. So the penalty here, it doesn't require, in my mind, and even under due process law, a proof beyond a reasonable doubt. But it does make people just feel uncomfortable with this idea. It makes people queasy. last year or two, I cover voting. And I talked to a lot of democracy experts who many of them say,

yes, I believe Donald Trump engaged in insurrection. And I simultaneously think he should be allowed on the ballot just because the danger to the country that could potentially follow from not allowing a candidate who clearly has, if not majority support, at least in the first couple of primary states, we're seeing he has a broad not majority support, at least in the first couple primary states, we're seeing he has a broad base of support within one of the two major parties in the country, not allowing that person to run for office potentially could lead to some sort of civil unrest. What do you make of that, Domenico? If the Supreme Court did decide that, yeah, he did engage in insurrection and he can be held off the ballot. Is it hyperbole to see this ending in political violence or unrest? Or what do you make of that? Well, it's not like it's ever happened before. We saw January 6th, you know, was a thing that happened in 2021. Not that long ago, because Trump convinced a lot of people that he was wrongfully...

That the election was taken from him, essentially, yeah. Trump obviously was able to say that he felt like the election was taken away from him, was stolen, which is not true. It went to court, you know, 60 plus times, and his team lost almost every single time there. But he was able to convince a lot of his followers that that was the case and certainly potentially spur some people to, you know, violence to action on this. And, you know, we've seen that, you know, in polling, that about a third of Republicans say that, you know, violence as a means to save the country might be necessary, compare that to much lower numbers of independents and Democrats. And, you know,

that's a scary place for the country to be in where you could be at the brink of violence on a lot of these things. But I'm not 100% sure that like, just because that's possible, that you then don't do what's right under the law. I couldn't agree more. Plus, I mean, if Joe Biden wins in November, legitimately, again, I think it's fair to anticipate violence again, right? Because these people believe the last election was stolen from him. The argument that we want to evade violence, I think, almost supports why he should be kept off the ballot. That is, this is a person that stokes violence and stokes lies and has made some very disturbing comments about, you know, basically suspending the Constitution, you know, prosecuting his political enemies using the Department of Justice, dismissing the civil service and putting loyalists in place. I mean, Donald Trump, you know, he says what he's going to do and he does it.

And I think this kind of person in the White House is exactly what the framers of Section 4 were worried about. I mean, they wanted to keep the country as a nation. And so as somebody who thinks a lot about democracy, I understand the argument that it's anti-democratic, but there are other requirements to be on the ballot. And I would argue this is one of them. You just add it to the list. But the stakes at the end of the day couldn't be really higher when you think about what we're talking about, Donald Trump, a second term and whether democracy will survive. One thing is for sure, it will be a divided decision. There will not be a unanimous, I think, nine zero vote one way or the other. We're going to see multiple lengthy opinions with different points of view

because this is not a black and white question. Okay, well, we can leave it there for now. We'll obviously be watching Thursday's oral arguments and talking about them on next weekend's show. Kim Whaley of the University of Baltimore, thank you so much for joining us. Thank you for having me. It's been a great conversation. And Domenico Montanaro, thank you again for joining us as always. You got it. And thanks to our supporters who hear this show sponsor free. If that's not you, it could be. Sign up at plus.npr.org or subscribe on our show page in Apple Podcasts. This show is produced by Tyler Bartlam and edited by Adam Rainey and Steve Drummond. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripoti is NPR's vice

president of news programming. I'm Miles Parks. Thanks for listening to Trump's Trials from NPR. Support for NPR and the following message come from SAP Concur, Thank you. The past is shrouded in mystery. To understand it, you have to get up close. Something happened to our collective psyche after the atom bomb. On NPR's ThruLine, we reopen stories from the past to find clues to the present. Find ThruLine wherever you get your podcasts. Find ThruLine wherever you get your podcasts.