Trump's Trials - The Supreme Court hears arguments on whether Trump should remain on the ballot

Episode Date: February 7, 2024

For this episode of Trump's Trials, NPR's Scott Detrow speaks to Justice Correspondent Carrie Johnson. On Thursday, the Supreme Court is set to hear oral arguments in the Colorado ballot case. This case centers on whether former President Donald Trump is disqualified from running for office on the basis of Section 3 of the 14th amendment. The once little-known clause bars anyone who swore an oath to support the Constitution and then "engaged in insurrection" against it from holding office. The Colorado Supreme Court determined that Trump had engaged in an insurrection and removed him from the state's primary ballot. Topics include:- Origins of the case- What to look for during the arguments - Trump's defense arguments 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

It's Trump's Trials from NPR. I'm Scott Detrow. We love Trump! This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. Tomorrow, the U.S. Supreme Court will hear oral arguments in a case that many experts say is the biggest election-related question since the court effectively decided the 2000 presidential race in Bush v. Gore. The question, whether former President Donald Trump can be barred from the ballot due to language in the 14th Amendment barring persons who have engaged

in insurrection from holding office. That was the conclusion that Colorado's state Supreme Court came to a few months ago, and now the highest court in the land will weigh in. And it's a case that could have enormous implications for this year's presidential election. Remember, Maine's secretary of state has already kicked Trump off the ballot as well, and officials are weighing similar challenges in nearly a dozen other states. We will get into all of this and preview tomorrow's oral arguments with NPR's justice correspondent who will be in the courtroom. That's Kerry Johnson. All that coming up after a quick break. This message comes from NPR sponsor, Solgar.

As people age, cellular function declines, which may impact changes in energy and strength. Solgar Cellular Nutrition is a holistic collection of cellular nutrients formulated to help fight cellular decline and promote cell health. Learn more at cellularnutrition.solgar.com. These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease. We are back with NPR Justice Correspondent Carrie Johnson. Hey, Carrie. Hey, Scott. Happy to be here. cure or prevent any disease. tomorrow. NPR will be carrying it live. This has hardly ever happened before. It's only recently

that the court live streamed the audio of its arguments. Just for those of us who have not listened in live before, can you tell us how long you expect tomorrow's arguments to go, what the general setup is going to be like? The court has allotted 80 minutes for argument. It's giving 40 minutes to Jonathan Mitchell, who's arguing for former President Donald Trump. A half an hour to Jason Murray, who will be arguing for the Colorado voters, gets 30 minutes. And Shannon Stevenson, who's arguing for the Secretary of State in Colorado, will get 10 minutes. But I think that those arguments are going to go much, much longer than 80 minutes, maybe three hours, maybe even longer at this point.

So let's back up here. Where did this case begin? You know, I talked with people recently at the group Citizens for Responsibility and Ethics in Washington, and they told me that after what happened after the violence at the U.S. Capitol three years ago on January 6, 2021, they did a state-by-state survey to figure out what the laws were and election laws were in each state. And they began to bring some legal challenges against people who had sworn an oath to the Constitution of the United States and later participated in the riot at the Capitol. One of the first cases they brought was against a New Mexico commissioner. They actually successfully, a couple years ago, disqualified

from public office in that state. And then one of the next cases they brought was against the former President Donald Trump, and that's the case the Supreme Court is going to hear tomorrow. Like we said, Colorado State Supreme Court ruled against Trump. Maine's Secretary of State came to a similar conclusion. There's other places that this question still hasn't been settled. I mean, all this is going into a presidential election where at this moment in time, Trump is almost certain to be the Republican nominee. Can you give us a sense of the magnitude of a question like this and the Supreme Court taking it up the gear of a presidential election? You know, like it or not, the Supreme Court is at the center of this election.

They've taken the question of whether the presumptive Republican nominee, Donald Trump, can be disqualified from the ballot in one state. But most people think they're going to issue some kind of ruling that would apply across the board and the other states as well. And they're being urged to act decisively to give guidance to these other states as well. So it's not to cause chaos or disenfranchise voters who might be upset about throwing away their vote for somebody who's later found to be disqualified in their particular state. So this is a huge deal, Scott. This is the first time in nearly 25 years that the court has been at the center of an election in this way. Remember in 2000, the Supreme Court stopped the Florida recount and essentially handed the election to George W. Bush. That was extremely controversial. Public opinion and public confidence

in the court has dipped precipitously since that moment. And so the justices are in a bit of an uncomfortable situation here, but they've got to pick a lane and make a choice eventually. you know, whether or not that was the right ruling. The American rule of law worked in that moment because Al Gore didn't say, I'm urging my supporters to push back against this. I was elected president, right? And then, of course, that's what 20 years later, Donald Trump actually did. Even though the election was not especially close, Joe Biden clearly won by a wide electoral college margin. Nobody questioned that. Every time the question came up in courts, Trump's claims were rejected, but he still refused to accept the results. And he attacked them and attacked them and stirred up his supporters. And as political violence when they don't get their way. That's why we're here right now. That's why he's facing criminal charges. How much does that real-world threat of violence hang in the air as the Supreme Court weighs such a consequential question?

I have to say it's all over this case. one of their briefs, attorneys for Donald Trump raised the issue that if Trump is disqualified, it could unleash chaos and bedlam across the country. And lawyers on the other side, lawyers for these Colorado voters and this nonprofit group in Washington called CREW, basically say that the court should not feel held hostage by Donald Trump and his supporters and the specter of violence. Donald Sherman is the chief counsel at Crewe. Here's what he told me. Where would Black Americans and other Americans be if in the moment where the 14th Amendment in particular needed to be enforced, that the court cowed to concerns about threats of violence or political unrest because the court was enforcing the law. Where would we be as a nation if in that moment the court bent to the threats of violence and to the concerns about political backlash?

This is exactly why we have courts. This is exactly why we have courts. This is exactly why we have a 14th Amendment and a Constitution. Section 3 was built for this moment. The question is whether we are built for it, whether our courts are built for it. I mean, Kerry, you're going to be at the Supreme Court tomorrow. You're going to be hearing oral arguments. you're going to be at the Supreme Court tomorrow. You're going to be hearing oral arguments. A lot of people put a lot of effort into trying to guess the outcome, guess which direction the court is going based on what kinds of questions the justices ask. What will you be listening for?

How much do you think that matters? What are some of the things that will make your ears automatically perk up? One of the major things, Scott, I'm going to be listening for is whether there are a lot of questions about technicalities, about technical arguments related to the words in the Constitution. One of Donald Trump's arguments, for instance, is that the president should not be considered an officer of the United States and therefore Section 3 of the 14th Amendment should not apply to him. He also has made an argument earlier in this case that the president's oath of office is slightly different than the oath of office other people take. So that's another reason this provision should not apply to him. Meanwhile, you know, there's an open question here about whether the former president actually engaged

in an insurrection under the terms of the Constitution. And these Colorado voters certainly think that he did, as did the Colorado Supreme Court. But if the Supreme Court starts asking lots of questions about whether January 6th amounted to an insurrection, we're going to be in a very fascinating place tomorrow, for sure. I mean, on the oath question, I'm just going to point out the obvious that the president's oath does talk about preserving and protecting the Constitution. So I'm not a lawyer or a judge, though. So my opinion doesn't actually matter. Well, you know, a whole bunch of issues in this case get down to nitpicking about specific words. And protect and preserve, is that the same thing as support? People are actually arguing this

in court papers in one of the most important Supreme Court cases we've seen in decades. And that's the kind of fighting that they're doing on paper. We'll see if the justices want to engage in that kind of fighting in the courtroom tomorrow. I mean, a lot of these justices have talked about being originalists and just looking at the word it's written. I'm wondering, how much do you think the context comes into play here? The 14th Amendment was, of course, written in the wake of the Civil War when the country was being put back together. And it was put in place so that people who took up arms or tried to overthrow the United States could not come back into office as they previously held. How much do you think the justices factor stuff like that in as they think this through?

There are so many friend of the court briefs in this case. Many of them are from historians and scholars who have gone back into the record, into the debates over rat clerk, I believe, to Chief Justice John Roberts and his co-author, Michael Stokes Paulson. approach. They're both conservatives. But they found in their law review article and all their research that it's not a close call, that in their view, January 6th is an insurrection pursuant to the terms of the people who ratified this amendment all those years ago, and that Donald Trump engaged in it and that he should be disqualified. And that was a pretty surprising result. Whether the conservative supermajority on the Supreme Court will be persuaded is another question surprising result. Whether the conservative supermajority on this Supreme Court will be persuaded is another question, though. And I want to ask you about another key legal question here. And that's the fact that even if that is a given, you know, Trump is facing 91

different criminal charges across multiple states and across multiple different cases. Insurrection isn't one of them. And none of these cases, as you and I have talked about many times at this point in a farcical way, none of these cases have gone to trial yet. How will that question of insurrection as a formal crime, a actual trial having taken place or not, an actual verdict being rendered, how will that play into tomorrow's arguments and this case as a whole? I think it's very likely that could come up. I talked recently with Scott Gessler, a lawyer for Donald Trump, and he's also the former Republican Secretary of State in Colorado, and he raised the issue. Here's what Gessler told me.

So there have been millions of dollars spent, and there have been over a thousand people prosecuted, and not one of them has ever been accused of engaging in insurrection. And he's talking there, of course, about the population of criminal defendants who've been charged with crimes related to January 6th. And none of them have been charged with insurrection. is the issue, that if this Supreme Court disqualifies Donald Trump in Colorado, that it could open the floodgates and there are going to be challenges to President Joe Biden and members of Congress and people in the Senate. And he thinks that if that door opens, it's really going to start a flood of these kinds of disqualification challenges all over the country. So last question, earlier this week, we finally got that appeals court ruling on

the separate question of presidential immunity. It took about four weeks for that ruling to be written and released. Any sense what the Supreme Court's timeline will be here? You know, election law experts have explicitly asked the Supreme Court to move quickly before more voters go to the polls on Super Tuesday, which is in early March. In fact, one of the more interesting front of the court briefs in this case is from a group of election law experts, including Rick Hasen, Ben Ginsberg, and Ned Foley. And they basically want the court to move very quickly and very decisively. They say if the court answers this question in a way that leaves an opening, either after the election in November or around the certification in January 2025, that it could place the nation in great peril.

They're asking the court to close the door one way or another on this question sooner rather than later. Carrie Johnson, thank you so much. My pleasure. And again, NPR will be airing Oral Arguments tomorrow morning live starting at 945 Eastern. So tune into your member station or you can listen on your NPR One app. And thanks to our supporters who hear this show sponsor free. If that is not you, it could be. Sign up at plus.npr.org or subscribe on our show page in Apple Podcasts. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR.

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