What A Day - The Question Of Trump's Eligibility

Episode Date: February 9, 2024

The Supreme Court heard oral arguments on Thursday in a case considering whether or not Donald Trump can be removed from the ballot in Colorado because of his role in the Jan. 6th insurrection. Most of the justices, including a number of the liberal justices, seemed convinced by at least one argument from the defense: that an individual state can't disqualify candidates in a national election without Congress specifically granting them that power. We’re joined by Melissa Murray, professor of law at NYU and co-host of Crooked’s Strict Scrutiny podcast, to learn more about the hearing and what comes next.And in headlines: a Special Counsel report into President Biden’s handling of sensitive government documents cleared Biden of committing any crimes, the FCC said that it’s immediately outlawing robocalls that feature AI voices, and a high school football team from the town of Lahaina is headed to the Super Bowl this weekend.Show Notes:What A Day – YouTube – https://www.youtube.com/@whatadaypodcastNFL Films Lahainaluna Football Documentary - https://www.espnhonolulu.com/2024/01/04/watch-nfl-films-lahainaluna-football-documentary/Luna Strong Fundraiser - https://www.downtownathleticclubhawaii.org/luna-strong/Follow us on Instagram – https://www.instagram.com/crookedmedia/

It's Friday, February 9th. I'm Josie Duffy Rice. And I'm Priyanka Arabindi. And this is What A Day, the podcast that is ready for Usher's Super Bowl performance this weekend. Yeah, you actually can't be as ready as me because I'm from Atlanta. No, I absolutely cannot be as ready as Josie, but I'm ready in my own way. In a non-Atlanta way. Ready in my own way.

May still be emotionally preparing. It's all right. I'll be ready by Sunday. It's fine. Right. On today's show, a special counsel report into President Biden's handling of sensitive government documents cleared Biden of committing any crimes. Plus, the Federal Communications Commission says that it's immediately outlawing robocalls that feature AI voices. But first, the Supreme Court yesterday heard oral arguments in a case that considers whether

or not Trump can be removed from the ballot in Colorado for taking part in an insurrection. It's one of the most important cases the court has heard in recent history, not only because the stakes are so high given it's Trump, but also because it requires them to parse through some very rarely relevant sections of the Constitution. Right. No one's looked at these sections in a hundred years. And it shows. Yeah, it really does show.

The court considered a number of questions in the case, and Trump wins if he only prevails on one of them. And most of the justices, including a number of the liberal justices, seemed convinced by at least one of those arguments, that one state cannot disqualify candidates in a national election without Congress specifically granting them that power. All in all, the court's debate was even more esoteric than usual. I mean, I listened to a lot of these oral arguments and even I was like, poof. Yeah. And as we know, the outcome is going to have a major effect on what happens in 2024 and beyond.

Absolutely. So to help us all understand what happened yesterday and the impact that it may have in the months to come, we called up our good friend of the pod, Melissa Murray. She is a law professor at NYU, a former clerk for Justice Sotomayor, and one of the hosts of Crooked's Strict Scrutiny podcast. She is also the co-author of the forthcoming book, The Trump Indictments, The Historic Charging Documents with Commentary, coming out on February 27th. Clearly a great person to talk to for all of this. I started out by asking about her thoughts on this hearing in general. One thing I thought was that the hearing didn't take nearly as much time as I think seasoned

court watchers expected. I had walked out almost three hours for this hearing, but it happened to be pretty quick, pithy. There were three advocates arguing, but still, it was pretty much around two hours. And I think that led me to believe, both the amount of time it took and the nature of the questions from the justices, that maybe they came to this with their minds already made up. Ah, okay. I buried the lead a little bit there, didn't I? Yeah, no, it seemed like, you know, based on everything we heard, the Supreme Court will end up letting Trump stay on the ballot here. The conservative justices, they definitely seem skeptical of the idea of kicking him off the ballot. But there also seem to be skepticism from the liberal justices as well.

So what kind of questions were they asking? And was this at all what you were expecting? So Donald Trump made a lot of arguments, both in the briefs and before the court. His lawyer who represented him today in the court was Jonathan Mitchell. Jonathan Mitchell is probably better known as the architect of the Texas abortion bounty hunter law, SB8. So he has a very storied provenance in the conservative legal movement. He was representing Donald Trump here. And he made a lot of different arguments. I don't think many of those arguments got a lot of traction on the court. So, for example, in the briefs and an oral argument, they were really pushing this idea that Donald Trump is not an officer of the United States within the meaning of Section

3 of the 14th Amendment. That didn't get a lot of purchase from many of the justices. And instead, what the justices did seem to coalesce around, and this really came out when the second advocate, Jason Murray, emerged to represent Colorado, the argument that they seem to be coalescing around is this idea that states cannot disqualify federal officials, or maybe just presidents, absent some kind of congressional authorization to do so. So I think that's going to be the rationale that the court uses here. But I think the top line is that Donald Trump is going to stay on the ballot.

And the fact that they were unwilling to really deeply engage in some of those questions suggests to me that they were looking for a pragmatic off-ramp here because the prospect of having 30, 34 different ballots where Donald Trump is not present and this election goes through, like that kind of patchwork outcome is not something that is appealing to this court. Yeah, there actually was very little time spent on Trump's actions surrounding January 6th, which is sort of what led to this. Yeah. What did you make of that? For the most part, there was no discussion of January 6th or this question of whether or not Donald Trump had engaged in insurrection or even the argument that whatever Donald Trump did on January 6th, he was protected under the First

Amendment, which is an argument that he has made not just here, but in other venues as well. They really didn't engage in that at all. There was one sort of sharp colloquy between Justice Jackson and one of the advocates in which she was like, you know, what was January 6th? And Jonathan Mitchell, Donald Trump's lawyer, sort of responded, well, it was organized chaos, but it wasn't an insurrection, you know, leading us to ask, to ask, well, what is organized chaos if it's not an insurrection? And honestly, that's a great t-shirt for the Crooked merch store, so get on that organized chaos. But there wasn't a lot of discussion about the context in which this particular dispute arose, nor was there a lot of discussion about the whole question of accountability, which is what Section 3 of discussion about the whole question of accountability,

which is what Section 3 of the 14th Amendment really is about, the prospect of disqualifying those who have been traitors to the United States and a system of orderly government and the peaceful transfer of power. Right. And based on the arguments we heard, you know, the questions that were being asked today, are you writing this off in your mind as an outcome we already know? How are you looking at this now? I mean, to me, the real question here is how fast will they get this done? Super Tuesday is in the offing. And, you know, it's a real question about whether or not Donald Trump is going to be

on the ballot in some of those Super Tuesday states. So timing is a question. I think the other question is going to be, what is the vote count here? And I think there's going to be a lot of pressure from the Chief Justice to issue an opinion that is unanimous, to have the court speak with one voice here. It wasn't so clear that we were going to get

that kind of unanimity coming out of this. I think Justice Sotomayor made very clear that she thought some of the arguments that Donald Trump was offering were sort of convenient, what she called gerrymandered arguments meant to mainly get Donald Trump out of this particular bind, but weren't necessarily really strong interpretations of Section 3 of the 14th Amendment. I also think Justice Alito had a really interesting turn in this oral argument in which, you know, he from the bench made some arguments that hadn't been floated by either side in their brief. So it was almost like he was second chairing this for Jonathan Mitchell,

who was representing Donald Trump. So I think, you know, if we get a unanimous opinion, that would be a win for the chief justice. But I think it's likely to come with some offshoot concurrences from some of the other justices who want to underline points that don't necessarily make it into the sort of coalescing view that the court is trying to gather around at this point. And last question, the Supreme Court may not be done tackling questions around Trump and the 2024 election. Tell us what is next and what, if anything, you are expecting from the court. Well, we just got an opinion from the D.C. Circuit about whether Donald Trump is immune from criminal prosecution because he is a former president.

And the D.C. Circuit rejected that argument unanimously. He is not immune. He is no longer president. He is just citizen Trump. It is very likely that Donald Trump will appeal that to the United States Supreme Court. And I think given that it seems all but certain that the court is going to hand Donald Trump a win on this disqualification issue, the real question will be, does the court take its time considering Donald Trump's request for review of the D.C. Circuit opinion before the court? If the court takes its time, that makes it much more unlikely that we are going to see a trial go off in that January 6th D.C. case that Jack Smith has brought.

I think for the court, if they're going to give Donald Trump this win on disqualification, it's really incumbent on them to move very quickly to either deny review on Donald Trump's request to have the DC Circuit's opinion reviewed and allow the criminal trial to go forward, or to take it up quickly, have oral argument, and just underscore exactly what the DC Circuit said, that a former president is not absolutely immune from criminal prosecution for misconduct undertaken

during his term of office. That was my conversation with Melissa Murray, professor of law at NYU and co-host of Crooked's Strict Scrutiny podcast. More on all of this very soon, but that is the latest for now. We'll be back after some ads. Let's get to some headlines. Headlines. A special counsel report into President Biden's handling of sensitive government documents cleared Biden of committing any crimes. But it also said a bunch of stuff that was downright unflattering of our 81-year-old president. The 345-page report paints Biden as a forgetful old man who was careless with classified materials at his home and who shared state secrets with his ghostwriter. Biden denied that during a press conference at the White House yesterday. The report said Biden, quote, did not remember when he was vice president, forgetting on the first day of the interview when his term ended, and forgetting on the second day of the interview when his term began. Not great.

It's not great. Maybe it's a coping mechanism. We also don't want to remember the last few years. That's like the nicest possible read we can have on it. Yeah, yeah, yeah. We'll give it to you. Sure. Maybe he was doing a bit.

Biden responded to the report by pointing out he spent five hours over two days with the investigator even while his administration was busy responding to the Israeli-Palestinian crisis that erupted October 7th. Take a listen to an interaction between reporters and President Biden at the White House yesterday. President Biden, something the special counsel said in his report is that one of the reasons you were not charged is because in his description, you are a well-meaning elderly man with a poor memory. The President I'm well-meaning and I'm an elderly man and I know what the hell I'm doing. I've been president and I put this country back on its feet.

I don't need his recommendation. It's totally up to him. The Press How bad is your memory and can you continue as president? My memory is so bad I let you speak. All right, listen, it's a good zinger. That joke is giving my grandpa, which is fine. He could be my grandpa. He is on his toes in these moments where he can get his zingers in and for that I am appreciative. The joke only a little bit made sense, but I kind of got where he really going with it. But anyways, this all just more fodder for the many critics of Biden who point to his age and poke at his mental state and have made that an issue. And I know that is a concern for so many people.

This is just not a great look for people who are concerned about all that. Not helping. Senators hauled their asses back to Capitol Hill yesterday to try and get something done and this time they sort of did the Senate advanced a 95 billion dollar foreign aid bill for Ukraine Israel and Taiwan which stripped out the provisions for tightening up the border Republicans bizarrely had refused to vote for the version with the border stuff in it even though they had been demanding that for months and that is like their number one priority in life. Trump had urged them to reject that plan, apparently, because he doesn't actually want any problems solved on Biden's watch.

This still isn't the final Senate vote, though. And even after this does get through the Senate, this will still have to get through the House, which could get messy. And some updates about the living nightmare that we called Robo-Biden this week. The Federal Communications Commission said yesterday that it's immediately outlawing robocalls that feature artificial intelligence voices. They're expanding the 1991 Telephone Consumer Protection Act to include those AI-generated and deepfake voices, giving state attorneys general more ground to pursue scam robocallers. All of this comes days after New

Hampshire's attorney general said that he has identified the source of the fake President Biden robocalls that were going around ahead of the state's primary last month. The statement went on to explain that these types of calls have increased in the last few years and have the ability to confuse consumers by pretending to be famous people, politicians, and even family members. With this new regulation, robocalls featuring AI voices would be subject to the same fines and consequences associated with illegal robocalls that don't use this technology. I like this, but I'm not going to lie, I did think it was already illegal to do this. I didn't realize it wasn't.. I like this, but I'm not going to lie. I did think it was already illegal to do this. I didn't realize it wasn't. So I guess this is great. Yeah. We're

finally up to speed with where I thought we were. You would think. You just can't lie and say you're someone. But yeah, apparently good. It's fine. And Marianne Williamson has exited the chat, even though we didn't know why she entered it in the first place. The Southup author announced that she was suspending her presidential campaign on Wednesday evening. Here is part of her video posted to X. This one campaign is over now, but that larger arc of American history, it goes on.

And it is my deepest hope that we in some way contributed to that larger story. She was one of only a handful of candidates who were challenging President Joe Biden. She won just roughly 2% of the vote in South Carolina's Democratic primary last Saturday. And a few hours before the results of the Nevada Democratic primary on Tuesday, Williamson wrote in a post on X, quote, Biden will not win, I will.

I guess the power of positive thinking didn't work out for her this time, but I see what she was trying to do there. And in more election news, the Nevada Republican caucuses took place last night, which Nikki Haley was not participating in. No surprises here that Trump took another victory. I don't think any of this is particularly surprising news, but sure. And finally, the Super Bowl is Sunday,

and a high school football team from the town of Lahaina is headed to Vegas to watch the game in person as special guests of the NFL. The league announced earlier this week that a small group of team captains and coaches from the Lahaina Luna high school football team, I love that name. Me too. It's beautiful. Will join them as honorary coin toss captains. A statement from the NFL recognized the team, the Lunas, as a team that, quote, embodies the power of football to bring people together even in the most challenging of circumstances and to recognize their incredible efforts in rebuilding their community. This comes six months after the devastating Lahaina wildfires.

Lahaina Luna was spared from the flames, but even though students have returned to the classroom, many are still reeling from the loss of their homes and loved ones. When school officials called the Luna team captains into the principal's office earlier this month, the boys thought they were in trouble for something. But they were overcome with joy when Philadelphia Eagles quarterback Marcus Mariota, who's from Hawaii, appeared on Zoom to surprise them with the news

that they were going to the Super Bowl. And if you weren't crying already, the NFL also said it will help replace all of the Lunas football equipment with new gear, free of charge. It's amazing. This is an amazing story. I love this.

We'll link to the documentary on the Lunas and their school's fundraiser for its athletic department in our show notes. I mean, I gotta say, they are in for an amazing weekend, obviously, at the Super Bowl. But has there ever been a better trip to the principal's office in the history of trips I know. I was thinking that, too. This is amazing.

You, like, truly think you're about to get in trouble. And then an NFL quarterback is like, hey, want to come to the Super Bowl? They're inviting you to the Super Bowl? It's amazing. That is like literally what dreams are made of. That's incredible. I love that. That is really good.

And those are the headlines. One more thing before we go. Keep It hosts Louis and Ira shared hot takes on why they felt Taylor Swift's Grammy speech was a flop. All right. There are a lot of reasons that one might think that. And I am a Taylor Swift fan. To hear this and more news coming out of music's biggest night of the year,

check out the latest Keep It episode on YouTube or wherever you get your podcasts. I will definitely be tuning in. That is all for today. If you like the show, make sure you subscribe, leave a review, stop Robo-Biden, and tell your friends to listen. And if you are into reading and not just the insurrection clause of the 14th Amendment, like me, What A Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Priyanka Arabindi. I'm Josie Duffy Rice. And let's go Lunas. I love that name too. Me too. Very into it. Who

are you rooting for this weekend? I don't have a team. You think I have a team in this? I'm rooting for the 49ers. I think I might be in on the Chiefs. Okay, that's cute. We'll have like a little rivalry where none of us really care. Really care. I love that. What a Day is a production of Crooked Media. It's recorded and mixed by Bill Lance. Our show's producer is Itzy Quintanilla.

Raven Yamamoto and Natalie Bettendorf are our associate producers. And our showrunner is Leo Duran. Our theme music is by Colin Gilliard and Kashaka.