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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: That's what makes these cases hard is that they are

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Speaker 2: First Amendment interests all over the place.

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Speaker 1: And not only are their First Amendment interests all over

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Speaker 1: the place, as Justice Elena Kagan put it, but the

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Speaker 1: justices questions seemed to be all over the place as

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Speaker 1: well as they considered whether public officials can block citizens

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Speaker 1: on social media. The two cases involved school board members

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Speaker 1: in San Diego and a city manager in Michigan who

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Speaker 1: blocked followers on social media, of course, evoking discussion of

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Speaker 1: former President Donald Trump's efforts to block people from his

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Speaker 1: Twitter account.

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Speaker 2: I mean, I don't think a citizen would be able

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Speaker 2: to really understand the Trump presidency, if you will, without

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Speaker 2: any access to all the things that the president said

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Speaker 2: on that account. It was an important part of how

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Speaker 2: he reel that his authority, and to cut a citizen

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Speaker 2: off from that is to cut a citizen off from

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Speaker 2: part of the way that government works.

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Speaker 1: The central question is whether the social media activity constitutes

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Speaker 1: state action, making it subject to the First Amendment, and

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Speaker 1: the federal appellate courts in the cases came to opposite conclusions.

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Speaker 1: The Justice has presented a host of social media scenarios

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Speaker 1: to the lawyers. Here are Justices Sonya Sotomayor and Brett Kavanaugh.

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Speaker 3: So let's assume a mayor says, I'm setting up a

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Speaker 3: hotline for emergencies on my Facebook or Twitter, and if

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Speaker 3: you have an emergency, call that hotline and I will

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Speaker 3: use the power of my office to set in motion

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Speaker 3: government response for your emergency. Seems to me that that's

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Speaker 3: government action, isn't it.

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Speaker 4: But suppose the city manager on the personal site says,

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Speaker 4: we have new recycling rules. You have to use a

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Speaker 4: blue bin, has to be at the curb, will be

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Speaker 4: picked up on Wednesdays. If you have any questions, contact me.

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Speaker 4: That's only on the personal site, not on the official site.

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Speaker 4: Such state action.

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Speaker 1: Joining me is Professor Eric Golman, co director of the

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Speaker 1: High Tech Law Institute at Santa Clara University Law School.

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Speaker 1: Eric explained the main issue in these cases.

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Speaker 5: The core issue is what should happen when government officials

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Speaker 5: maintain social media accounts. Can they treat it as if

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Speaker 5: they're ordinary citizens or are they governed by the rules

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Speaker 5: that apply to government generally?

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Speaker 1: And are the issues in the two cases before the

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Speaker 1: court basically the same.

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Speaker 5: They're basically the same. There are little details about exactly

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Speaker 5: how the particular government officials were using their social medi

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Speaker 5: accounts that might matter to the final conclusion, but the

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Speaker 5: core questions the court's asking and the legal test it's

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Speaker 5: likely to adopt are probably going to be the same.

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Speaker 1: So let's talk about the concerns of some of the justices,

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Speaker 1: and Justice Elena Kagan said there are First Amendment interests

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Speaker 1: all over the place.

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Speaker 5: I thought that was a really great line, honestly, just

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Speaker 5: as Kaigan has just such a great way of turning phrases.

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Speaker 5: And she's absolutely right. There are First Amendment considerations on

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Speaker 5: all sides. It's not like there's an easy path forward

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Speaker 5: that balances all the respective interests. On the one hand,

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Speaker 5: people who work for the government should be free to

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Speaker 5: engage their communities and express themselves publicly as private citizens.

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Speaker 5: That's the constitutionally protected right. They don't give up that

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Speaker 5: right by going to work for the government. On the

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Speaker 5: other hand, when the government controls online discourse spaces where

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Speaker 5: people are talking to each other, there's a really real

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Speaker 5: and significant risk of censorship. And so the concern is

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Speaker 5: that if the government officials can act like private individuals,

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Speaker 5: they can functionally censor conversations. Now, if they're acting in the

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Speaker 5: private individual they're allowed to do that, but after the

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Speaker 5: government they're not. And so either we're going to circumscribe

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Speaker 5: the free speech rights of government employees, or we're going

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Speaker 5: to allow government employees to circumspend the free speech rights

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Speaker 5: of the people who want to engage with them. Somebody

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Speaker 5: is going to lose something here.

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Speaker 1: Yeah, so Trump came up naturally, and just as Elena

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Speaker 1: Kagan said, Trump was conducting a lot of government on

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Speaker 1: his Twitter account. It's an important part of how he

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Speaker 1: wielded his authority. And to cut a citizen off from

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Speaker 1: that is to cut a citizen off from part of

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Speaker 1: the way the government works. And in these local cases,

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Speaker 1: it's just as important for constituents to hear what their

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Speaker 1: school board members are saying, or their town managers and

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Speaker 1: the like.

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Speaker 5: It's not just to be able to hear what the

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Speaker 5: government officials are saying, but also to be able to

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Speaker 5: talk back to them, and even more importantly, in certain circumstances,

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Speaker 5: be able to talk to each other as constituents or

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Speaker 5: as citizens that are responding to the posting of a

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Speaker 5: government official, and so when a government official exercises some

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Speaker 5: of the tools that provide them via social media to

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Speaker 5: control conversations, what they're really doing is distorting the conversation

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Speaker 5: that citizens might want to have with each other.

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Speaker 1: So I don't know why. To me, it seems like,

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Speaker 1: you know, if you're posting public information on a website,

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Speaker 1: on a Facebook page, that that should be open to

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Speaker 1: the public and the public able to comment, and if

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Speaker 1: you want not to do that, then have a private

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Speaker 1: page as well.

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Speaker 5: So certainly those ideas came out. In fact, there are

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Speaker 5: three different categories of pages that a government official might have.

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Speaker 5: They may have an official government page, they may have

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Speaker 5: a campaign page, which is not part of their official

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Speaker 5: government duties but still is an important place for them

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Speaker 5: to evangelize the work they're doing. And they may have

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Speaker 5: a personal page that has nothing to do with their

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Speaker 5: role in government. And figuring out which account is in

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Speaker 5: which category is something that is baffling to us as

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Speaker 5: citizens when we see our government officials online, and it's

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Speaker 5: also vexxing to the government officials because so often they

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Speaker 5: want to take their victory laps, they want to evangelize

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Speaker 5: their work to tout their successes and we aren't sure

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Speaker 5: are they telling them as official government policy, as a

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Speaker 5: campaign promise, or just because they're touting their own work

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Speaker 5: as a private individual. And the court didn't know how

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Speaker 5: to approach that issue. They understood the trade offs, but

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Speaker 5: there was no clear way to move forward that was

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Speaker 5: going to satisfy everybody.

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Speaker 1: So I want to get your reaction to what Justice

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Speaker 1: amy Cony Barrett said.

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Speaker 6: I think it's very difficult when you have an official

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Speaker 6: who can in some sense define his own authority. So

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Speaker 6: I think for a governor or President Trump, it's a

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Speaker 6: harder call than someone like a police officer who's a subordinator.

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Speaker 6: I could, you know, my lacker could just start posting

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Speaker 6: things and say this is the official business of the

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Speaker 6: Barrett Chambers, right, and that wouldn't be okay. But if

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Speaker 6: you know the that wouldn't be okay.

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Speaker 1: That coman got a laugh, of course, But what do

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Speaker 1: you think about the content of what she's saying.

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Speaker 5: I mean, the example she gave was kind of weird

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Speaker 5: because a clerk wouldn't be likely to be able to

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Speaker 5: set up and speak on behalf of their judge that

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Speaker 5: employed them, So that was a weird example. But the

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Speaker 5: broader principle is one hundred percent correct that the Court

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Speaker 5: is trying to figure out, how do they simultaneously govern

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Speaker 5: the top of the political hierarchy, like a president or

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Speaker 5: a governor or even a mayor, someone who's at the

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Speaker 5: top of the organizational pyramid, and all the people who

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Speaker 5: are rank and flyle government employees, some of who might

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Speaker 5: also be able to speak on behalf of the government,

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Speaker 5: others of whom have no real legitimacy to do so.

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Speaker 5: And the Supreme Court is struggling figure out, how can

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Speaker 5: we come up with one rule that covers all of

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Speaker 5: those different types of job, responsibilities and status in the hierarchy.

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Speaker 5: And it's possible that they cannot come up with a

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Speaker 5: single rule that will cover it. They may need multiple

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Speaker 5: rules that will have to be iterated over time.

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Speaker 1: So you think that there's no clear legal test that

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Speaker 1: they could come out with.

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Speaker 5: Honestly, no, there is no clear legal test. And I

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Speaker 5: think we can be a little bit more emphatic that

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Speaker 5: the different considerations include things like what's the employee's job

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Speaker 5: and what tools are available in social media to be

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Speaker 5: able to co control conversations, and which of those tools

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Speaker 5: was wielded and how did the person describe or characterize

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Speaker 5: their account, and how much of the account was used

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Speaker 5: with official related postings versus personal postings like we need

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Speaker 5: a multi dimensional matrix to try to figure out where

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Speaker 5: to place all of the different nodes in those questions.

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Speaker 5: And that's why, even with two cases in front of

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Speaker 5: the Supreme Court that they can use to compare and contrast,

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Speaker 5: they still don't have enough cases to cover the full

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Speaker 5: range of facts that are going to be implicated by

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Speaker 5: their ruling.

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Speaker 1: Coming up, we'll discuss whether there was any consensus on

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Speaker 1: the court. I'm Jim Grosso. When you're listening to Bloomberg,

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Speaker 1: I've been talking with Professor Eric Goldman of Santa Clara

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Speaker 1: University Law School about Supreme Court oral arguments over whether

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Speaker 1: public officials can be sued for restricting access to their

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Speaker 1: social media feeds. It's the first of several social media

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Speaker 1: classes this term. So how about the idea that was

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Speaker 1: floated by Justice Katanji Brown Jackson of a clear disclaimer

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Speaker 1: indicating that government officials were posting on social media in

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Speaker 1: their personal capacity or I guess vice versa in their

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Speaker 1: government capacity.

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Speaker 5: Certainly no doubt that legends would help at least us

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Speaker 5: as constituents know what to expect. But the disclaimers could

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Speaker 5: just be another form of a manipulation by the government official.

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Speaker 5: They could say I'm not speaking officially, but then speaking

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Speaker 5: ways that actually are fully official, or vice versa. They

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Speaker 5: could say, this official government account, but let me highlight

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Speaker 5: some of my personal attributes and treat them as if

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Speaker 5: they're a part of the government responsibility. And so the

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Speaker 5: disclaimer doesn't really solve the problems that I think we have.

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Speaker 5: But no doubt that if somebody portrays their account as

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Speaker 5: an official government account without trying to walk it back

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Speaker 5: or qualify that, I think the rules should be that

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Speaker 5: we should hold them to that approach. But if they

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Speaker 5: don't officially represent as part of their government acount, it

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Speaker 5: still might be part of their government function, and so

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Speaker 5: the disclaimer is not going to be complete.

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Speaker 1: The Buying administration was backing the government officials positions. They

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Speaker 1: characterized the Facebook and Twitter feeds as private property. That

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Speaker 1: seemed to me to be a not a great concept. Here.

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Speaker 5: It's a really awkward conversation because we know that the

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Speaker 5: social media services have their own rules, they have their

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Speaker 5: own technological options that differ amongst themselves, and they have

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Speaker 5: the ability to intervene with respective particuarids and content, irrespective

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Speaker 5: of whether or not the Constitution would permit the government

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Speaker 5: official take that action. So they're like the elephant in

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Speaker 5: the room. Everyone knows that the social media services are

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Speaker 5: an integal player in this conversation, but they're not the

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Speaker 5: plaintiff or the defendant, and as a result, they're not

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Speaker 5: actually represented in this litigation, and as a result, the

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Speaker 5: Supreme Court is likely to treat them as this opaque

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Speaker 5: third party player who is immaterial or inconsequential to the rules.

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Speaker 5: That's actually a good outcome. I really don't want the

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Speaker 5: Supreme Court talking about social media as a private entity

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Speaker 5: or not. I don't want them making hard lines when

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Speaker 5: that's not the question the government has to answer. But

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Speaker 5: it's impossible to ignore the shadow of the cast over

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Speaker 5: everything that takes place on their services.

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Speaker 1: The federal appeals courts reached opposite conclusions in the lower

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Speaker 1: court cases.

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Speaker 5: That's correct. The Ninth Circuit held that the government officials

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Speaker 5: in that case, school board members were acting in their

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Speaker 5: function as government officials when they blocked some constituents from

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Speaker 5: accessent and social media account In the Sixth Circuit. It

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Speaker 5: was a government employee who had also blocked individuals. The

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Speaker 5: court had held in that case that he was acting

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Speaker 5: as a private individual that was his private account.

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Speaker 1: So there were three hours, I believe, of oral arguments.

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Speaker 1: Did you see some justices, some blocks of justices sort

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Speaker 1: of coming to some conclusions or did you see any patterns?

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Speaker 5: The short answer is no, Really, the oral arguments were

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Speaker 5: quite opaque about where the judges are likely to end up,

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Speaker 5: which is unusual, but one would have hoped that we

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Speaker 5: would have been able to get a clearer line from

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Speaker 5: new oral arguments. Having said that, there are two things

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Speaker 5: that stood out to me. First is that some justices

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Speaker 5: seem to be gravittained around the test that was advocated

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Speaker 5: by the Department of Justice and was endorsed by the

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Speaker 5: lawyers for the government employees about looking at the duties

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Speaker 5: of the government official and their authority to speak on

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Speaker 5: behalf of the government. And so Justice Gore Such for example,

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Speaker 5: at one point said it sounds like we got consensus.

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Speaker 5: That's the right test. I don't know if there was consensus,

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Speaker 5: but it wouldn't surprise me if the test looked something

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Speaker 5: like that. At the end of the oral arguments, Justice

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Speaker 5: Kagan once again had a really powerful turn of the phrase.

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Speaker 5: She came and basically blasted the government lawyers, saying that

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Speaker 5: the government lawyers proposed test was really out of think

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Speaker 5: with the importance of social media to the government function

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Speaker 5: and would limit the ability of us as constituents or

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Speaker 5: to be able to defend our own interests when the

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Speaker 5: government keeps embracing social media. So I saw kind of

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Speaker 5: two opposite approaches there, Justice Gore such saying, you know,

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Speaker 5: sounds good to me, let's go with the test that

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Speaker 5: you proposed, and Justice Kagan saying that test is actually

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Speaker 5: really harmful to the future.

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Speaker 1: Was there a split on ideological lines or did this

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Speaker 1: cross ideological lines?

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Speaker 5: I couldn't put together a pattern that represented any kind

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Speaker 5: of ideological partisan fit. But having said that, I would

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Speaker 5: say that it seemed like some of the quote more

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Speaker 5: conservative justices were more inclined to support the government employees

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Speaker 5: freedom to do what they want, whereas some of the

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Speaker 5: quote more liberal justices were more skeptical about how that

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Speaker 5: could lead to censorship.

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Speaker 1: So at times when we've had these oral arguments at

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Speaker 1: the Supreme Court involving you know, the internet, texting social media,

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Speaker 1: the justices have seemed to be a step behind, maybe

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Speaker 1: more than one step. Did it seem like they fully

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Speaker 1: grasped what was going on in these cases?

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Speaker 5: They really didn't. This was yet another example of how

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Speaker 5: the Internet baffles Supreme Court justices. And just to be clear,

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Speaker 5: we don't know how many Supreme Court justice this is spend

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Speaker 5: time on social media, but it's not like they do

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Speaker 5: it publicly. So they're just not familiar with social media

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Speaker 5: at the same degree that most of us, as everyday

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Speaker 5: users are, So it's not surprising that it's a little

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Speaker 5: bit baffling to them if they're not immersed in that

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Speaker 5: is part of their daily functions. But there was a

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Speaker 5: really awkward line that came from Chief Justice Roberts where

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Speaker 5: he talked about social media, described it as the gathering

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Speaker 5: of protons, and it was such a reductionist approach that

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Speaker 5: social media is just about the movement of electronic pulses

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Speaker 5: on the Internet. That's all it is. And it's kind

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Speaker 5: of like saying that Supreme Court of opinions are just

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Speaker 5: inc on a piece of paper. It's a reductionist conclusion

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Speaker 5: that isn't inherently wrong, but it completely misunderstands the scope

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Speaker 5: and the stakes at issue in this case.

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Speaker 1: And this is the first of several social media clashes

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Speaker 1: that coming up this term involving the First Amendment and

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Speaker 1: how it applies to social media companies.

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Speaker 5: Just to be clear, there's going to be a steady

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Speaker 5: stream of Internet law cases going to the Supreme Court

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Speaker 5: and likely to be decided by the Supreme Court over

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Speaker 5: the next few years. We've had just this upswell of

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Speaker 5: legislation trying to regulate the Internet, and many of those

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Speaker 5: laws are going to end up before the Supreme Court.

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Speaker 5: So we're just kind of at the beginning of this

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Speaker 5: multi year cycle where the Supreme Court is going to

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Speaker 5: be regularly deciding the future of the Internet. One of

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Speaker 5: the other cases they've set it or there's two companion

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Speaker 5: cases involved the Texas and Florida social media censorship laws.

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Speaker 5: These are laws that were enacted to basically take government

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Speaker 5: control over the functional operations of social media. Sounds like

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Speaker 5: the kind of thing that we would think would be

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Speaker 5: clearly censorship, and yet the Florida court said that some

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Speaker 5: of it was struck down, some of it was okay.

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Speaker 5: The Texas pele Court said it all sounds good to me,

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Speaker 5: and so the future of the Internet is very much

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Speaker 5: mistake in that set of cases as well, because if

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Speaker 5: the Supreme Court says that the government can dictate how

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Speaker 5: social media runs its operations, they are going to be

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Speaker 5: dictating what editorial decisions those services can make.

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Speaker 1: A lot more oral arguments on social media to come.

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Speaker 1: Thanks so much, Eric. That's Eric Goldman, a professor at

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Speaker 1: Santa Clara University School of Law and co director of

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Speaker 1: the High Tech Law Institute. Coming up next, we'll take

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Speaker 1: a look at the effort to keep Donald Trump off

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Speaker 1: the ballot in Colorado and other states. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg.

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Speaker 5: We're going to walk.

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Speaker 3: Down, and I'll be there with you. We're going to

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Speaker 3: walk down. We're going to walk down anyone you want,

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Speaker 3: but I think right here, we're going to walk down

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Speaker 3: to the capital.

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Speaker 1: A group of voters in Colorado are using Donald Trump's

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Speaker 1: fiery speech on the Ellipse before the assault on the

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Speaker 1: Capitol on January sixth as part of their unprecedented lawsuit

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Speaker 1: seeking to keep Trump off the ballot in Colorado in

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Speaker 1: twenty twenty. It's the first trial in a fight playing

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Speaker 1: out in courts across the country, citing a rarely used

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Speaker 1: clause in the Fourteenth Amendment that prohibits those who engaged

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Speaker 1: in insurrection against the Constitution from holding higher office. But

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Speaker 1: this attempt raises so many legal and political questions. Joining

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Speaker 1: me to help answer them is elections law expert Richard Hassen,

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Speaker 1: a professor at UCLA Law School. Rick start by telling

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Speaker 1: us about this clause in the fourteenth Amendment.

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Speaker 7: So the Fourking Commendment contains a part in section three,

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Speaker 7: it says people who participated in an insurrection or gave

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Speaker 7: aid and comfort to those who did, who had served

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Speaker 7: in office, and who had taken an oath to for

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Speaker 7: the Constitution are not eligible to run for office again.

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Speaker 7: This was a provision that was put in the Constitution

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Speaker 7: after the Civil War to prevent former people who were

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Speaker 7: in the US government who became part of the Confederacy

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Speaker 7: from running for office again unless Congress had specifically approved

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Speaker 7: that they could be rehabilitated and back in society.

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Speaker 1: And this has obviously never been used to try to

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Speaker 1: step a presidential canant from getting on the ballot. But

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Speaker 1: is there any precedent for this?

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Speaker 7: Well, right after the Civil War, there were people who

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Speaker 7: were subjected to this provision. Just last year there was

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Speaker 7: someone who was a local election official who was found

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Speaker 7: to have violated this, but it wasn't fully tested in

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Speaker 7: the courts. So we're really dealing with a provision that

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Speaker 7: hasn't been put in place in the modern times and

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Speaker 7: really fleshed out. So there are a ton of both

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Speaker 7: legal and political issues that are going to have to

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Speaker 7: be worked out within the next year in order for

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Speaker 7: us to know if and how this might apply to

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Speaker 7: Donald Trump.

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Speaker 1: And the judge in the Colorado case so she'll have

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Speaker 1: to decide if the language at issue gives courts the

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Speaker 1: authority to disqualify him, and then whether Trump fits under.

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Speaker 4: That language that's right.

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Speaker 7: So there are questions as to whether this can even

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Speaker 7: apply in a primary election as opposed to a general election.

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Speaker 7: The constitutional provision speaks to holding office, not running for office.

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Speaker 7: There are questions as to whether it applies to someone

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Speaker 7: who took an oath as president, whether that person fits

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Speaker 7: into the definition of those people covered under this part

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Speaker 7: of the fourteenth Amendment. There are all these kinds of

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Speaker 7: legal questions that precede the question of whether, if it

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Speaker 7: does apply to a presidential candidate and it can apply

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Speaker 7: in a primary election, and it can be a state

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Speaker 7: court judge that's making that decision. Candid apply against Donald Trump,

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Speaker 7: that did he engage in this kind of activity that

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Speaker 7: would be prohibited under this part of the constitution.

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Speaker 1: A lot of questions. So Eric Olsen, the attorney for

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Speaker 1: the Colorado challengers, has argued that there are four basic components.

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Speaker 1: Trump took an oath as an officer of the U

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Speaker 1: the Capital Tech was an insurrection. Trump engaged in that insurrection,

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Speaker 1: and Colorado's secretary of State can be ordered by the

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Speaker 1: court to keep him off the state's ballot because of it.

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Speaker 1: Going backwards, is there a question as to whether Colorado's

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Speaker 1: secretary of state can be ordered to keep someone off

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Speaker 1: the ballot?

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Speaker 7: Right, So there are questions about that, in part because

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Speaker 7: the provision itself doesn't speak to running for office. It

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Speaker 7: speaks to holding office. So just imagine a kind of

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Speaker 7: different scenario. Imagine that someone's thirty three and they want

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Speaker 7: to run for president. You have to be thirty five.

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Speaker 7: So what do you do with that person? Do you

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Speaker 7: let them run for office and then if they win,

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Speaker 7: Congress just doesn't accept their votes because the person is

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Speaker 7: not qualified if not, who decides to take them off

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Speaker 7: the ballot? And so there are state ballot rules. Some

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Speaker 7: states provide that if you're not going to meets qualifications,

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Speaker 7: you can't run. Other states don't have that explicitly. So

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Speaker 7: there's all kinds of questions about that.

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Speaker 1: So outside the questions about, you know, the language and

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Speaker 1: what that entails, is the hardest thing for the challengers

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Speaker 1: to show that Trump engaged in that insurrection.

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Speaker 7: Well, they don't have to show that he necessarily engaged

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Speaker 7: in it. He could have aided and supported it, and

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Speaker 7: that's probably would be an easier case to make. But

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Speaker 7: I don't know that that is an easier question than

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Speaker 7: the legal questions that preceded. There are legal arguments, for example,

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Speaker 7: that this only applies to people who took an oath,

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Speaker 7: who were officers of the United States and took an

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Speaker 7: oath to support the Constitution. And there are arguments that

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Speaker 7: it doesn't cover the president, which is kind of a

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Speaker 7: strange argument. Why would it cover every officeholder but the president?

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Speaker 7: But there are some textualists, some originalists who have been

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Speaker 7: making the argument that it doesn't apply, and so of

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Speaker 7: course's going to have to resolve that. There are just

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Speaker 7: so many different twists and turns that in order for

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Speaker 7: to actually be kept off the ballot, everything has to

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Speaker 7: go the way of the challengers, and there's a lot

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Speaker 7: of offerms for that potentially not to happen.

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Speaker 1: The voters group here has played that fiery speech that

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Speaker 1: Trump made on the Ellipses on January sixth, But like

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Speaker 1: the call to Georgia Secretary of State Brad Raffinsberger, Trump

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Speaker 1: often qualifies what he says, is that going to pose

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Speaker 1: a problem for the challengers here?

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Speaker 4: Right?

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Speaker 7: Well, I don't think they would necessarily have to rely

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Speaker 7: only on his words, but on the activities that he

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Speaker 7: partook in the weeks after the twenty twenty election, when

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Speaker 7: many people believe he tried to overturn the results of

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Speaker 7: that election through illegal needs. So it wouldn't even necessarily

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Speaker 7: have to be only the January sixth activity. Maybe the

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Speaker 7: whole thing was a kind of insurrection, but because the

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Speaker 7: Constitution doesn't define that term, I think that this room

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Speaker 7: for arguing about all of these things.

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Speaker 1: Judge Wallace has laid out nine topics to be dressed

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Speaker 1: at the trial, and you know, if you look at them,

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Speaker 1: there are questions that have been debated since the insurrection

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Speaker 1: and that the country is divided on and so it

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Speaker 1: seems like no matter what she rules politically, it's going

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Speaker 1: to be difficult, a nightmare, I mean, because people are

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Speaker 1: so divided about these questions.

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Speaker 7: Well, we just did a conference for the Safeguarding Democracy Project,

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Speaker 7: and one of the panels that I put together was

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Speaker 7: a group of experts who study democracies around the world,

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Speaker 7: because we're not the only democracy that has problems with

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Speaker 7: candidates who don't necessarily follow the rule of law and

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Speaker 7: who might try to subvert democratic outcomes. And the bottom

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00:24:43,440 --> 00:24:48,720
Speaker 7: line of these experts was that unless there's a large

443
00:24:49,480 --> 00:24:53,560
Speaker 7: majority of the country that wants to disqualify someone, you're

444
00:24:53,600 --> 00:24:56,840
Speaker 7: running a real political risk. If you say that the

445
00:24:57,000 --> 00:25:00,920
Speaker 7: preferred candidate of a large percentage of people in the

446
00:25:01,000 --> 00:25:03,720
Speaker 7: United States can't run for office, that looks like you're

447
00:25:03,760 --> 00:25:06,520
Speaker 7: taking a choice away from them. Even if there are

448
00:25:06,560 --> 00:25:10,440
Speaker 7: strong legal grounds to do this, it raises political risks.

449
00:25:10,880 --> 00:25:14,679
Speaker 1: As you said, the questions here are up for debate

450
00:25:14,880 --> 00:25:18,160
Speaker 1: as far as scholars are concerned, and I know that

451
00:25:18,240 --> 00:25:22,879
Speaker 1: several scholars have come out in support of this theory

452
00:25:22,920 --> 00:25:25,520
Speaker 1: about the fourteenth Amendment. Which side would you say that

453
00:25:25,560 --> 00:25:27,760
Speaker 1: the weight of scholarship is on as far as the

454
00:25:27,800 --> 00:25:28,880
Speaker 1: fourteenth Amendment.

455
00:25:28,560 --> 00:25:31,680
Speaker 7: Applying, well, quite frankly, I say the weight of scholarship

456
00:25:31,680 --> 00:25:35,919
Speaker 7: doesn't exist because very few people there are, you know,

457
00:25:36,720 --> 00:25:40,199
Speaker 7: literally under a dozen people in the United States. So

458
00:25:40,240 --> 00:25:43,080
Speaker 7: I think I've studied this seriously who are still alive today.

459
00:25:43,520 --> 00:25:48,920
Speaker 7: So what kicks this off, as I think, something that

460
00:25:49,080 --> 00:25:52,720
Speaker 7: seriously on the agenda was a Latter Review article that

461
00:25:52,960 --> 00:25:57,840
Speaker 7: two conservative law professors Will Body and Michael Stokes Paulson

462
00:25:57,920 --> 00:26:00,800
Speaker 7: posted It's going to be appearing in the University of

463
00:26:00,840 --> 00:26:05,560
Speaker 7: Pennsylvania lar Review that made a conservative originalist case for

464
00:26:05,840 --> 00:26:09,920
Speaker 7: including Donald Trump under this provision of the Constitution. That

465
00:26:10,000 --> 00:26:14,159
Speaker 7: has spurred additional research that has spurred more supporters and

466
00:26:14,280 --> 00:26:17,520
Speaker 7: detractors from coming forward. But I think it's very hard

467
00:26:17,560 --> 00:26:19,359
Speaker 7: to say with the weight of scholarly authority is I

468
00:26:19,359 --> 00:26:23,040
Speaker 7: can tell you I've studied election law for many decades,

469
00:26:23,160 --> 00:26:25,399
Speaker 7: and it's really not an issue that was on my

470
00:26:25,560 --> 00:26:29,240
Speaker 7: radar because you know, you don't expect that insurrection and

471
00:26:29,400 --> 00:26:33,879
Speaker 7: civil war type situations are going to have applications in

472
00:26:34,000 --> 00:26:34,719
Speaker 7: modern times.

473
00:26:34,720 --> 00:26:36,080
Speaker 5: That those who studied.

474
00:26:35,680 --> 00:26:39,240
Speaker 7: This before the Trump era were primarily historians.

475
00:26:39,480 --> 00:26:43,840
Speaker 1: If Trump is convicted in the federal January sixth case

476
00:26:44,520 --> 00:26:48,720
Speaker 1: before the election, would that be too late to then

477
00:26:48,920 --> 00:26:51,240
Speaker 1: take him off the ballots in the states?

478
00:26:51,400 --> 00:26:55,399
Speaker 7: I don't think the fourteenth Amendment question and the federal

479
00:26:55,440 --> 00:26:59,480
Speaker 7: criminal charges ask the same question. That is, Trump could

480
00:26:59,480 --> 00:27:02,160
Speaker 7: be convicted of all of the federal charge, but that

481
00:27:02,160 --> 00:27:05,480
Speaker 7: doesn't prove that he engaged insurrection as that term is

482
00:27:05,560 --> 00:27:09,359
Speaker 7: used in the Constitution. It certainly would be a stronger

483
00:27:09,520 --> 00:27:12,479
Speaker 7: political case to remove someone from the ballot who has

484
00:27:12,520 --> 00:27:15,320
Speaker 7: been convicted of crimes related to trying to manipulate the

485
00:27:15,400 --> 00:27:20,359
Speaker 7: last election, but that doesn't necessarily answer the question that

486
00:27:20,760 --> 00:27:22,719
Speaker 7: is posed by the fourteenth Amendment.

487
00:27:23,440 --> 00:27:26,720
Speaker 1: Trump just filed a lawsuit to shut down a similar

488
00:27:26,760 --> 00:27:30,720
Speaker 1: case in Michigan, and there is a hearing set for tomorrow.

489
00:27:30,720 --> 00:27:35,720
Speaker 1: I think in Minnesota. Are all these challenges similar or

490
00:27:35,760 --> 00:27:36,600
Speaker 1: are they different?

491
00:27:37,160 --> 00:27:39,240
Speaker 7: Well, they're all similar in the sense that they raised

492
00:27:39,240 --> 00:27:43,399
Speaker 7: the question whether Trump is disqualified from serving as presidents.

493
00:27:43,400 --> 00:27:47,320
Speaker 7: They come up in very different procedural contexts. Every state

494
00:27:47,359 --> 00:27:49,600
Speaker 7: has their own rules as to how they decide who

495
00:27:49,600 --> 00:27:52,040
Speaker 7: gets on the ballot, help people get removed from the ballot,

496
00:27:52,560 --> 00:27:55,240
Speaker 7: But ultimately, I think, and I very much hope that

497
00:27:55,320 --> 00:27:57,760
Speaker 7: this issue gets resolved by the United States Supreme Court

498
00:27:57,840 --> 00:28:01,679
Speaker 7: sooner rather than later. It's not for the country for

499
00:28:01,720 --> 00:28:04,520
Speaker 7: there to be uncertainty, And it would be especially bad

500
00:28:05,240 --> 00:28:09,760
Speaker 7: for Trump to become the Republican nominee, and then as

501
00:28:09,840 --> 00:28:12,480
Speaker 7: the election time is getting close, for Trump to be

502
00:28:12,520 --> 00:28:15,480
Speaker 7: removed from the ballot, then that would really remove a

503
00:28:15,640 --> 00:28:18,600
Speaker 7: choice from voters at a time when it may be

504
00:28:18,680 --> 00:28:21,879
Speaker 7: very difficult to replace Trump with a different candidate. So

505
00:28:22,119 --> 00:28:24,960
Speaker 7: I would hope, whichever way this is going to come out,

506
00:28:25,400 --> 00:28:27,840
Speaker 7: that we get some finality as soon as possible.

507
00:28:28,359 --> 00:28:30,960
Speaker 1: I mean, it seems like no matter which way these

508
00:28:31,040 --> 00:28:33,600
Speaker 1: cases go, that they're going to end up at the

509
00:28:33,640 --> 00:28:35,000
Speaker 1: Supreme Court, don't you think.

510
00:28:35,720 --> 00:28:38,040
Speaker 7: I do hope that they end up at the Supreme Court.

511
00:28:38,400 --> 00:28:40,800
Speaker 7: One of my concerns is that there are many doctrines

512
00:28:40,880 --> 00:28:45,240
Speaker 7: that the courts use to avoid deciding issues. For example,

513
00:28:45,880 --> 00:28:48,760
Speaker 7: the case is not ripe yet the person who's suing

514
00:28:48,760 --> 00:28:52,520
Speaker 7: doesn't have standing, you know that we should abstain. This

515
00:28:52,560 --> 00:28:54,520
Speaker 7: is a political question. So there are a lot of

516
00:28:54,520 --> 00:28:57,160
Speaker 7: off ramps where the court could avoid deciding the issue.

517
00:28:57,400 --> 00:28:59,240
Speaker 7: But if the court is ultimately going to be the

518
00:28:59,240 --> 00:29:01,480
Speaker 7: one deciding the is rather than leaving it to say

519
00:29:01,520 --> 00:29:04,760
Speaker 7: Congress on January sixth, twenty twenty five, it's better for

520
00:29:04,760 --> 00:29:06,640
Speaker 7: it to weigh in sooner and for the country to

521
00:29:06,720 --> 00:29:09,320
Speaker 7: have some definitive answer on this question.

522
00:29:09,920 --> 00:29:11,760
Speaker 1: When you read about this, they say, well, if it

523
00:29:11,800 --> 00:29:14,040
Speaker 1: goes to the Supreme Court, there are three Trump appointees

524
00:29:14,080 --> 00:29:17,840
Speaker 1: as a conservative court. Do you have any inkling as

525
00:29:17,840 --> 00:29:20,800
Speaker 1: to what will concern the justices.

526
00:29:22,000 --> 00:29:25,560
Speaker 7: Well, so we know that these justices are not simply

527
00:29:25,560 --> 00:29:27,840
Speaker 7: going to do Trump's bidding. And we know that because

528
00:29:28,560 --> 00:29:33,200
Speaker 7: they all rejected the Hail Mary case brought from Texas

529
00:29:33,240 --> 00:29:36,680
Speaker 7: trying to throw out the electoral college votes of other states.

530
00:29:36,760 --> 00:29:38,880
Speaker 7: They're going to if this gets to the court and

531
00:29:38,920 --> 00:29:41,720
Speaker 7: they reach the merits, they're going to use their usual

532
00:29:41,760 --> 00:29:45,280
Speaker 7: methodologies to decide this question. So some of the justices

533
00:29:45,320 --> 00:29:50,400
Speaker 7: who are more originalists oriented are going to ask questions

534
00:29:50,480 --> 00:29:53,560
Speaker 7: under what the original public meaning of that term was.

535
00:29:54,040 --> 00:29:56,640
Speaker 7: Others are going to look more eclectically at different means

536
00:29:56,680 --> 00:30:00,280
Speaker 7: of interpretation. But I think it's very early to say

537
00:30:00,480 --> 00:30:04,200
Speaker 7: what the Court might do, in part because we don't

538
00:30:04,240 --> 00:30:05,960
Speaker 7: know exactly which case is going to get up there

539
00:30:06,000 --> 00:30:08,240
Speaker 7: at what time, and what the legal basis is going

540
00:30:08,280 --> 00:30:11,160
Speaker 7: to be for potentially removing or not removing him from

541
00:30:11,160 --> 00:30:13,880
Speaker 7: the ballot. It might be that the Supreme Court doesn't

542
00:30:13,880 --> 00:30:18,200
Speaker 7: get involved unless and until a lower court decides that

543
00:30:18,240 --> 00:30:21,280
Speaker 7: Trump should be removed from the ballot. That would really

544
00:30:21,320 --> 00:30:23,520
Speaker 7: force the Supreme Court's hand. In a lot of ways.

545
00:30:24,320 --> 00:30:28,640
Speaker 1: These cases sound, as you've described, not only as long shots,

546
00:30:28,680 --> 00:30:32,600
Speaker 1: but long, long, long shots at getting Trump off the ballot.

547
00:30:33,160 --> 00:30:33,400
Speaker 4: Yeah.

548
00:30:33,480 --> 00:30:36,680
Speaker 7: I do think they are very long shot, But I

549
00:30:36,720 --> 00:30:38,760
Speaker 7: don't think the cases are going to stop until we

550
00:30:38,800 --> 00:30:41,680
Speaker 7: get something definitive, because one thing we know about Donald

551
00:30:41,720 --> 00:30:45,320
Speaker 7: Trump is that he brings out the most extreme supporters

552
00:30:45,400 --> 00:30:48,800
Speaker 7: and detractors. He's a polarizing figure, and so this is

553
00:30:48,840 --> 00:30:51,200
Speaker 7: going to keep going until we know that this is

554
00:30:51,240 --> 00:30:53,880
Speaker 7: a path that is not open to people.

555
00:30:54,360 --> 00:30:57,160
Speaker 1: Thanks so much, Rick for your insights. That's Professor Rick

556
00:30:57,200 --> 00:31:00,880
Speaker 1: Hassen of UCLA Law School. That's it for this edition

557
00:31:00,920 --> 00:31:03,560
Speaker 1: of the Bloomberg Law Show. Remember you can always get

558
00:31:03,560 --> 00:31:06,200
Speaker 1: the latest legal news by listening to our Bloomberg Law

559
00:31:06,240 --> 00:31:10,040
Speaker 1: Podcast wherever you get your favorite podcasts. I'm June Grosso

560
00:31:10,280 --> 00:31:11,400
Speaker 1: and this is Bloomberg