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Speaker 1: Senator Colorado banned Donald Trump from the ballot. A bunch

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Speaker 1: of other states decided they wanted to do the exact

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Speaker 1: same thing, and now this is all going to the

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Speaker 1: Supreme Court. We thought it was appropriate to spend some

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Speaker 1: serious time on the podcast today talking about this issue.

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Speaker 1: Why was Colorado chosen to be the case that would

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Speaker 1: go to the Supreme Court over the other states that

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Speaker 1: had also done the same thing, because Trump's team and

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Speaker 1: they had options here, Why was it Colorado and what

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Speaker 1: does this mean moving forward?

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Speaker 2: Well, Colorado was really the only option. We have two decisions.

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Speaker 2: We have Colorado and Maine. Colorado was a decision from

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Speaker 2: the state Supreme Court. It was a decision that was

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Speaker 2: four to three, and a decision from a state supreme

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Speaker 2: court can be appealed to the US Supreme Court. What

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Speaker 2: happened in Maine was it was a decision from the

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Speaker 2: Secretary of State. So it was an individual It was

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Speaker 2: not a court that decided it was the secretary of state.

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Speaker 2: Secretary of State is not a lawyer. She is not

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Speaker 2: an elected official by the people. She is elected by

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Speaker 2: the state legislature.

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Speaker 3: In Maine. She made a determination.

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Speaker 2: The next step in Maine is for that to be

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Speaker 2: challenged in Maine.

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Speaker 3: Judicial court, in state court.

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Speaker 2: Okay, so you can't appeal from the main Secretary of

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Speaker 2: State to the US Supreme Court because the only option

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Speaker 2: was in Colorado was the only option. Appeals to the

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Speaker 2: Supreme Court as a general matter, lie either from state

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Speaker 2: supreme courts or lie from federal courts of appeal. And

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Speaker 2: so the way the courts work, you have a federal

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Speaker 2: system and you have a state system. Typically both are

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Speaker 2: set up with trial courts, intermediate appellate courts, and then

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Speaker 2: the Supreme Court. And so in the state you have

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Speaker 2: typically a trial court, intermediapellate court, the Supreme Court, and

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Speaker 2: from the state supreme court you can appeal to the

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Speaker 2: US Supreme Court, although you can only appeal a question

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Speaker 2: of federal law. So Colorado can determine Colorado's state law

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Speaker 2: the Supreme Court, and the US Supreme Court doesn't determine

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Speaker 2: Colorado state law. But in this instance the question is

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Speaker 2: overwhelmingly it is entirely one of federal law, namely what

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Speaker 2: the Fourteenth Amendment to the Constitution means.

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Speaker 1: So the Supreme Court to be clear, and this is

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Speaker 1: where it's gotten complicated. When you go before the Supreme

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Speaker 1: Court in this case with Colorado, the argument that's going

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Speaker 1: to be made. Is it going to be about whether

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Speaker 1: there was insurrection and he was in charge of that insurrection,

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Speaker 1: therefore he should be disqualified with a fourteen amendment. Or

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Speaker 1: is this about a state overstepping and saying we believe

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Speaker 1: that he was a guy that was involved in insurrection,

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Speaker 1: so therefore we can take him off the bout or

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Speaker 1: is it really a combination of both.

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Speaker 2: So it'll be both, and let me break down. Look unverdict.

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Speaker 2: When the Colorado decision came down, when the main decision

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Speaker 2: came down, we said on this podcast, I predicted the

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Speaker 2: Supreme Court would do exactly what it's done, that the

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Speaker 2: Supreme Court would take the case, and that they would

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Speaker 2: take it quickly. That is what has happened. So they've

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Speaker 2: taken it.

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Speaker 3: Now.

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Speaker 2: They've set the oral argument for February eighth, so that

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Speaker 2: is exceptionally fast. Generally, when the Supreme Court takes a case,

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Speaker 2: you have months to file briefs and the oral argument

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Speaker 2: is six months down the road. In this instance, the

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Speaker 2: oral argument is a month from now. The parties will

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Speaker 2: file their briefs in the next couple of weeks. So

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Speaker 2: they are furiously writing their briefs right now.

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Speaker 1: And when you say the party is to be clear,

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Speaker 1: that is the Colorado Attorney General and her staff is

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Speaker 1: going to be filing on their side. And then who's

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Speaker 1: going to be filing this is it Trump's personal legal

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Speaker 1: team or is in the campaign.

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Speaker 2: Out well, So the Colorado Republican Party has filed an appeal,

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Speaker 2: Trump will certainly file, will participate in it. You will

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Speaker 2: have other meeky friends of the court. And what I

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Speaker 2: want to do for this podcast is two things. Want

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Speaker 2: to tell you what I think the Court's going to

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Speaker 2: do and why. But two then I want to just

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Speaker 2: explain the details of the legal arguments that are playing out,

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Speaker 2: because this is complicated, it's hard to understand, and it's

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Speaker 2: important to understand. I believe the US Supreme Court is

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Speaker 2: going to reverse the Colorado Supreme Court, and I think

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Speaker 2: there is a very good chance that the U. S

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Speaker 2: Supreme Court will do so unanimously. Really, I think if

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Speaker 2: I were to put the odds of a unanimous decision,

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Speaker 2: I'd say the odds of unanims decision are sixty to

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Speaker 2: seventy percent.

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Speaker 1: You say that, and there's gonna be what the listener,

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Speaker 1: they are gonna be shocked. I'm one of them. And

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Speaker 1: here's why I feel like I've lost some faith in

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Speaker 1: the Supreme Court, specifically over Roe v. Wade and the

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Speaker 1: leaking of that decision, and also the fact that clearly

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Speaker 1: there had to be people that knew who leaked it,

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Speaker 1: and we still haven't found out who the leaker is.

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Speaker 1: There's no indication we ever are going to figure out

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Speaker 1: who the leaker is, which is I think also shocking.

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Speaker 1: So when you come back and you say nine to oh,

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Speaker 1: tell me why you have that much faith.

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Speaker 3: So I think a number of things.

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Speaker 2: I think number one, the Chief Justice John Roberts is

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Speaker 2: going to be deeply invested in wanting this to be unanimous,

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Speaker 2: in not having the Supreme Court appear partisan. Every justice

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Speaker 2: is going to be aware this is a decision that's

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Speaker 2: going to be watched by the country and watched by

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Speaker 2: the world, and every justice is aware of not wanting

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Speaker 2: the Court to appear like a political or partisan body.

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Speaker 2: John Roberts, whom I know very very well. As you know,

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Speaker 2: I clerk for Chief Justice William Rehnquist. John Roberts clerk

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Speaker 2: for Chief Justice Renquist as well. He's been a friend

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Speaker 2: of mine for thirty years. He cares deeply about the

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Speaker 2: institutional legacy of the Court, and he is going to

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Speaker 2: be deeply motivated a unanimous decision, I think he will believe,

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Speaker 2: and I think all of the justices will believe. Is

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Speaker 2: the best for the Court and the best for the country.

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Speaker 1: Is that because a precedent moving forward that ten years,

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Speaker 1: twenty years from now, we could see this happen again,

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Speaker 1: where a political party decides we're just going to try

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Speaker 1: to throw a guy off the ballot.

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Speaker 4: It could be a Democrat next time.

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Speaker 2: Look, the precedent on this is terrible and what the

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Speaker 2: Colorado Supreme Court did was lawless, and we'll walk through

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Speaker 2: it that in a minute. But here's what I think

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Speaker 2: will happen. So, by the way, to give you a

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Speaker 2: sense of the scope of it, if the US Supreme

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Speaker 2: Court affirmed the Colorado Supreme Court decision, Donald Trump would

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Speaker 2: be struck from the ballot. And if that determination was made,

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Speaker 2: it's not binding on the other states, but the other

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Speaker 2: states within very short order, Trump would be removed from

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Speaker 2: the ballot in all fifty states. So if the Supreme

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Speaker 2: Court decided fifty.

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Speaker 1: So not just Democrat states or there's a Democrat attorney

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Speaker 1: general there. You're saying all over the country.

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Speaker 2: The only ground on which the US Supreme Court could

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Speaker 2: affirm the Colorado Supreme Court is to conclude that Trump

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Speaker 2: is barred from running for office because of the Fourteenth Amendment,

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Speaker 2: Section three the Constitution. If the Supreme Court concludes that,

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Speaker 2: every state will remove them from the ballot, and you

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Speaker 2: will have courts order every state to do that. So

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Speaker 2: that would be a nationwide decision. Now, it would also

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Speaker 2: be a decision that would be so profoundly anti democratic,

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Speaker 2: and I think it would rip this country apart. And

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Speaker 2: the Court doesn't want to do that. You know, there's

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Speaker 2: a rich irony democrats. What they tell you, what they

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Speaker 2: accuse their opponents of doing, almost inevitably, is what in

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Speaker 2: fact they are doing. Every Democrat right now is beating

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Speaker 2: their chests saying we must save democracy. Joe Biden just

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Speaker 2: gave a ludicrously self righteous speech saying we must save democracy,

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Speaker 2: by which he means elect democrats. And nothing saves democracy

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Speaker 2: or defends democracy like throwing your opponent off the ballot,

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Speaker 2: so to stop the voters from voting for him. Understand

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Speaker 2: why the Democrats are doing this they're afraid the voters

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Speaker 2: will vote for Donald Trump if he's on the ballot,

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Speaker 2: and so they're trying to prevent democracy. I don't think

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Speaker 2: the Supreme Court is going to have any interest in

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Speaker 2: playing a part in preventing democracy, in stifling the right

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Speaker 2: of the voters to decide. And here's how I actually

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Speaker 2: think it will play out. I think John Roberts in particular,

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Speaker 2: is going to go to Elena Kagan. Elena Kagan is

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Speaker 2: the smartest of the liberal justices. She was the dean

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Speaker 2: of the Harvard Law School, she was the United States

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Speaker 2: Solicitor General. She is a very very smart, talented lawyer.

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Speaker 2: And I think Roberts is going to try very hard

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Speaker 2: to make the personal case each of the justices that

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Speaker 2: the Court needs to be united. By the way, that's

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Speaker 2: not unprecedent. If you look at Brown versus Board of Education,

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Speaker 2: which was the case in nineteen fifty four that struck

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Speaker 2: down segregated schools. That decision was unanimous. Earl Warren was

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Speaker 2: the Chief Justice. He understood that that decision was a big,

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Speaker 2: big deal. Segregated schools had been allowed under a decision

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Speaker 2: called Plessy versus Ferguson, a terrible decision, and Brown overruled

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Speaker 2: Plessy and Earl Warren thought it was critically important that

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Speaker 2: the Court speak unanimously that there'll be no division on

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Speaker 2: a Christian that would impact every American. I think this

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Speaker 2: is of a similar magnitude, and given the political context,

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Speaker 2: I think every justice will feel an urge to have

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Speaker 2: the Court not appear to be a political branch.

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Speaker 3: Now.

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Speaker 1: You mentioned, by the way, in a previous verdict, that

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Speaker 1: the justice don't necessarily talk a lot to each other,

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Speaker 1: almost never.

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Speaker 4: They operate as almost like independent law firms. As you

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Speaker 4: described it.

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Speaker 1: This seems different in this scenario where you're saying there

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Speaker 1: will be almost in essence, like a lobbying for the

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Speaker 1: sanctity of the court in essence and for the country, like, hey,

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Speaker 1: we need to all get together on this one.

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Speaker 4: This is different and.

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Speaker 1: You believe that's probably how it's going to play. And

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Speaker 1: that doesn't happen very often, correct.

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Speaker 2: It happens very very rarely. In this instance, I think

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Speaker 2: it was a no brainer the Court would take it.

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Speaker 2: It didn't surprise me at all, and by the way

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Speaker 2: it was going to be argued on February eighth, we

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Speaker 2: will get a decision.

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Speaker 3: I think by the middle of February.

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Speaker 2: We'll have a decision within a week or two or three.

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Speaker 1: Who decides at the Supreme Court to take a case

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Speaker 1: quickly and walk us just through that?

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Speaker 4: Does that have to be a lot of justices.

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Speaker 2: So what was filed is what's called a petition for

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Speaker 2: rid of cercherari. That is a request for the court

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Speaker 2: to hear an appeal. The Supreme Court is unusual in

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Speaker 2: that many courts of appeals, most courts of appeals, you

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Speaker 2: have an appeal by right. In other words, if you

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Speaker 2: file an appeal, the court has to take it. If

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Speaker 2: you have a case in federal district court, you're convicted

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Speaker 2: of a crime, or you have a civil lawsuit, you

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Speaker 2: assue me and you lose, you can file an appeal

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Speaker 2: as of right. And if you're in federal district court

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Speaker 2: here you would appeal to the Fifth Circuit Court of

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Speaker 2: Appeals and the Fifth Circuit will take that appeal.

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Speaker 3: It has no choice.

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Speaker 2: The Supreme Court has what's called a discretionary jurisdiction, which

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Speaker 2: means it chooses which cases to take. In a typical year,

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Speaker 2: they are about eight thousand wow. Cert petitions is what

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Speaker 2: they're called petitions for sorcer or. Everyone calls them cert petitions.

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Speaker 2: They're about eight thousand. The Court typically takes about eighty,

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Speaker 2: so it takes about one percent of the appeals it

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Speaker 2: says yes. It takes four justices to vote to grant cert.

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Speaker 2: I believe this case was a no brainer. I think

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Speaker 2: all nine of them agreed we needed to take it.

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Speaker 2: I don't think they hesitated on, of course, whether or

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Speaker 2: not one of the two major party nominees is excluded

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Speaker 2: from the ballots and the voters are prevented from voting

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Speaker 2: under the Constitution. It is difficult to imagine a more

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Speaker 2: consequential question and a question that demands the Supreme Court

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Speaker 2: get it. Look, I don't think the Court was eager

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Speaker 2: to get into this issue at all. If Colorado hadn't decided.

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Speaker 4: This, they went to have touched it.

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Speaker 2: The Justices are not looking to opine on this, but

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Speaker 2: once Colorado ruled, they had no choice, and they had

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Speaker 2: no choice but to do it quickly.

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Speaker 1: All right, real quick, though, Let's talk about your finances.

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Speaker 1: It's twenty twenty four and a lot of us are

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Speaker 1: trying to get our finances in order. There are some

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Speaker 1: great news for homeowners. Interest rates have dropped and are

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Speaker 1: now in the fives, a lot lower than what they

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Speaker 1: were last year. If you've been buried in high interest

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Speaker 1: credit card debt, now's the time to break free. American

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Speaker 1: salary based mortgage consultants help customers save an average of

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Speaker 1: giving yourself a ten thousand dollars rais what a way

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Speaker 1: to start the new year off. And if you start today,

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Speaker 1: you may be able to delay two mortgage payments. Call

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Speaker 1: American Financing today eight and eight six seven five forty nine.

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Speaker 1: That's eight and eight six seven five forty nine. Americanfinancing

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Speaker 1: dot net MLS eighteen twenty three thirty four MLS, Consumer

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Speaker 1: at six point.

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Speaker 4: Four zero For well qualified borrowers.

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Speaker 1: Call eight and eight six seven five forty nine for

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Speaker 1: details about credit costs and terms. What was the mentality

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Speaker 1: of the court when you were part of the Bush

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Speaker 1: team in Bush v. Gore when they took that pretty

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Speaker 1: quickly as well, So that was that was really fast,

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Speaker 1: seems a lot like this timeline. They weren't eager to

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Speaker 1: get involved in that either, if I remember correctly, walk

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Speaker 1: us through that comparison.

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Speaker 2: Yeah, So Bush versus Gore, I was part of the

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Speaker 2: legal team representing George W. Bush in the year two thousand.

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Speaker 2: That entire legal proceeding took thirty six days, and I

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Speaker 2: was down in Florida and Tallahassee as a baby lawyer.

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Speaker 2: I was twenty nine years old, but part of the

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Speaker 2: legal team, one of the most junior members of the

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Speaker 2: legal team, but part of the legal team litigating in

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Speaker 2: that particular case. We went to the US Supreme Court twice,

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Speaker 2: and in those thirty six days, the Supreme Court heard

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Speaker 2: two appeals. Those two appeals were briefed, they heard or arguments,

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Speaker 2: and they issued decisions, and both of those played out

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Speaker 2: within the thirty six days. So the court can move

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Speaker 2: exceptionally quickly if there is an urgency to do so.

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Speaker 2: It was interesting in Bush versus Gore there was a

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Speaker 2: divide of opinion among the lawyers representing Bush as to

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Speaker 2: whether the court would take the case really, and the divide,

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Speaker 2: by and large was the divide between those who had

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Speaker 2: clerked at the court and those who had not clerked

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Speaker 2: at the court. Almost without exception those of us who

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Speaker 2: had been law clerks at the Supreme Court believe the

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Speaker 2: Court would take the case that even though in two

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Speaker 2: thousand the Court was not eager to get in the

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Speaker 2: presidential race, it required there was a responsibility for the

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Speaker 2: Court to resolve it.

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Speaker 3: I think that's exactly what they feel here now. Given that.

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Speaker 2: If it's going to be a unanimous decision, and as

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Speaker 2: I said, I think it is more likely than not

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Speaker 2: that it is, then the Court is not going to

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Speaker 2: rule I believe that there was not an insurrection, Like

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Speaker 2: that's one ground you could reverse as say there was

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Speaker 2: not an insurrection.

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Speaker 3: Why is that going to be the case?

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Speaker 2: Look, I don't think there was an insurrection as a

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Speaker 2: matter of law, and we'll talk about that in a second.

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Speaker 3: But I don't think the court will rule that.

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Speaker 2: Why because I don't think Kagan or Soda Mayor or

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Speaker 2: Kotanji Brown Jackson would rule there was not an insurrection.

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Speaker 2: So if it's going to be unanimous, they're going to

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Speaker 2: have to find a way to resolve it that is narrow,

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Speaker 2: but that reverses it and brings everyone to go. And

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Speaker 2: so here's the basis. I think they will resolve it.

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Speaker 2: I think they will resolve whether or not there was

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Speaker 2: an insurrection. I'm willing to bet right now there will

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Speaker 2: be a sentence in the opinion that says, we express

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Speaker 2: no opinion on whether or not an insurrection occurred on

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Speaker 2: January sixth.

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Speaker 1: So they're gonna say, that's not what we're here to do,

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Speaker 1: that's not what we're deciding.

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Speaker 4: We're not part of that debate.

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Speaker 2: I think what they will say instead is, however, the

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Speaker 2: determination of that matter cannot be made without evidence, without

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Speaker 2: due process, without a judicial proceeding, and in particular the

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Speaker 2: ground that I think the court will go to. So

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Speaker 2: there's a federal statute. So here's what eighteen USC. Section

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Speaker 2: two three eight three says. It's entitled rebellion or insurrection.

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Speaker 2: Whoever insights, sets on foot, assists, or engages in any

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Speaker 2: rebellion or insurrection against the authority of the United States

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Speaker 2: or the laws thereof, or gives aid or comfort there too,

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Speaker 2: shall be fined under this title or imprisoned not more

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Speaker 2: than ten years, or both, and shall be incapable of

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Speaker 2: holding any office under the United States. Now notice the

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Speaker 2: penalty and capable of holding any office. This is a

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Speaker 2: statute that is codifying the Section three of the fourteenth Amendment,

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Speaker 2: and it is insurrection. Now, interestingly enough, Donald Trump, it seems,

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Speaker 2: has been indicted all over the place by a bunch

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Speaker 2: of very partisan, over zealous prosecutors who hate the man.

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Speaker 2: And you know what, he hasn't been indicted for anywhere insurrection.

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Speaker 2: Jack Smith, who is javert to Trump as Jean Valjean

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Speaker 2: Jack Smith hates Trump and wants to get him no

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Speaker 2: matter what, in prison for life senence. And Jack Smith

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Speaker 2: is in decent with a very liberal judge. He's got

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Speaker 2: a DC jurypool that is ninety four percent Democrat, he's

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Speaker 2: got the most favorable environment in the world. And you

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Speaker 2: know what he hasn't done in indicted Trump for insurrection.

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Speaker 2: And the only reason he.

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Speaker 1: Has to say so, the question is why why?

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Speaker 2: Because there's no remote evidence that would prove that Trump

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Speaker 2: had engaged in insurrection. Donald Trump sent some tweets and

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Speaker 2: stood up and gave a speech in which he told.

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Speaker 3: People be peaceable, be peaceful.

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Speaker 2: There there, you cannot prove as a matter of law

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Speaker 2: that telling people to be peaceful is engaged in insurrection.

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Speaker 2: So understand, when Democrats go on TV and say it's

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Speaker 2: an insurrection. It's an insurrection when when reporters go on

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Speaker 2: TV and say that, they mean that as political rhetoric.

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Speaker 2: Insurrection is a legal term, and there's a reason no

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Speaker 2: one has charged him with it because you couldn't pass

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Speaker 2: the laugh test. So what I think the Supreme Court

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Speaker 2: would say is, if you want to bar Trump from

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Speaker 2: being on the ballot, charge him and convict him with insurrection.

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Speaker 2: Jack Smith brings an indictment, they get a conviction, that

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Speaker 2: conviction is upheld on appeal.

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Speaker 4: Then look, then that's a different argument. Right, he's been

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Speaker 4: convicted of it.

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Speaker 2: Then it's a slam dunk if Trump were convicted of insurrection,

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Speaker 2: if anyone were convicted of insurrection, they would be barred

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Speaker 2: from being on the ballot.

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Speaker 1: When you look at Jack Smith, and I got to

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Speaker 1: go back to this because you talk about these guys

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Speaker 1: and all of the different things they've gone after Trump,

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Speaker 1: and to remind people that the entire country, not one

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Speaker 1: of these over zealous prosecutors has gone after Trump for insurrection.

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Speaker 1: Do you think Jack Smith probably sent in room with

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Speaker 1: a bunch of Democrats and said, absolutely.

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Speaker 4: Is there any way we could get him?

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Speaker 1: Is it possible if we were going to try the case,

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Speaker 1: how would we try the case? And then every time

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Speaker 1: they went back to Donald Trump's own words of him

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Speaker 1: saying go peacefully, and the tweets of him saying go peacefully,

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Speaker 1: have a peaceful day, and the fact that he also

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Speaker 1: said he offered up the National Guard, which Democrats Pelosi

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Speaker 1: said no to. So if you're trying to have an insurrection,

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Speaker 1: would you try to do that as well?

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Speaker 2: And understand looks Section three the Fourteenth Amendment was passed

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Speaker 2: in the wake of the Civil War. It was designed

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Speaker 2: to stop people who had fought for the Confederacy from

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Speaker 2: serving in Congress, from serving an elected office, from serving

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Speaker 2: in government. If you were so understand when they were

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Speaker 2: writing insurrection, they were thinking about the Civil War now,

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Speaker 2: And we could in a minute go into and we

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Speaker 2: may even do an entire podcast, a separate podcast on

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Speaker 2: some of the judicial precedent on a post civil war.

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Speaker 2: But a potential response to what I just said that

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Speaker 2: the court would say, if you want to bar Trump

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Speaker 2: from the ballot, prosecute him and convict him of insurrection.

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Speaker 2: A potential response was well, post Civil War, the Civil

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Speaker 2: War officers who were banned, they were not always barre

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Speaker 2: prosecuted for insurrection. That's true, but I will say this,

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Speaker 2: and it varied, but there was zero dispute that an

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Speaker 2: insurrection had occurred. The predicate. You want to know what

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Speaker 2: an insurrection is, Well, the Civil War lasted four years

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Speaker 2: and six hundred thousand Americans were killed. That's an insurrection. Yeah,

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Speaker 2: Like they brought out cannons, they shot and killed each

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Speaker 2: other and had a war for four years, and it's

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Speaker 2: the bloodiest war in American history. That's what they were

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Speaker 2: talking about when they said insurrection, not a riot where

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Speaker 2: some individuals committed individual acts of violence for which they

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Speaker 2: were prosecuted and are serving jail terms. That is like

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Speaker 2: the analogy is to the Civil War, and it's why

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Speaker 2: no prosecutor can can bring this case. All right, let

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Speaker 2: me walk through some of the arguments that are at play.

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Speaker 2: So here's what Trump argues to the Supreme Court in

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Speaker 2: his cer petition. First, he argued that the Supreme Court

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Speaker 2: took Congress's authority to resolve questions of presidential eligibility, that

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Speaker 2: it is a political matter to determine rather than a

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Speaker 2: legal question, whether he is eligible under the Fourteenth Amendment.

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Speaker 2: And actually in making this argument, he mentions President Obama

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Speaker 2: and disputes about whether he was eligible to be president.

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Speaker 2: He mentions Senator McCain when he ran for president, disputes

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Speaker 2: about whether he was eligible, and he mentions me, actually,

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Speaker 2: and there were disputes. There were challenges when I was

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Speaker 2: running for president. There were legal challenges that I was

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Speaker 2: not a natural born citizen. I was, in fact a

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Speaker 2: natural born citizen, because what the Constitution requires is that

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Speaker 2: you mean natural born. I was a US citizen even

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Speaker 2: though I was born in Canada. My mother was a

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Speaker 2: US citizen at the time of my birth, and so

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Speaker 2: I was a citizen by birth. The process of being

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Speaker 2: born is what made me an American citizen. I was

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Speaker 2: never naturalized. But there were a bunch of lawsuits that

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Speaker 2: were five against me when I ran. We defeated them all,

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Speaker 2: and the courts threw them out, and we defeated them all.

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Speaker 2: And what Trump said is, look, if there's a dispute,

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Speaker 2: that's ultimately a question for Congress to decide, not the court.

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Speaker 2: So that's argument number one. That's a real argument. A

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Speaker 2: second argument is that Section three does not reply to

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Speaker 2: the office of the president. This is a real argument,

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Speaker 2: but I'd be surprised if the Supreme Court agrees with

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Speaker 2: this one. But let me give you what his basis is.

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Speaker 2: Trump argues it based on three different grounds that if

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Speaker 2: you look at the phrase officer of the United States,

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Speaker 2: it appears in three constitutional provisions other than Section three

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Speaker 2: the fourteenth Amendment. It appears in the appointments clause, which

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Speaker 2: requires the President to appoint ambassador's, public ministers and consuls,

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Speaker 2: justices of the Supreme Court, and all other officers of.

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Speaker 3: The United States.

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Speaker 2: And he points out, well, the president obviously can't appoint himself,

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Speaker 2: so officers are something different than the president. Likewise, the

439
00:24:08,359 --> 00:24:14,480
Speaker 2: commission's clause requires the President to commission all the officers

440
00:24:14,480 --> 00:24:18,000
Speaker 2: of the United States. Again, the president doesn't commission himself.

441
00:24:18,840 --> 00:24:21,440
Speaker 2: So the argument is officers of the United States are

442
00:24:21,480 --> 00:24:26,679
Speaker 2: different from the president, which is a constitutional creation. And

443
00:24:26,720 --> 00:24:31,240
Speaker 2: then also the impeachment clause, the clause that verdict started with.

444
00:24:32,040 --> 00:24:38,200
Speaker 2: The impeachment clause says, quote, the President, vice President, and

445
00:24:38,400 --> 00:24:41,439
Speaker 2: all civil officers of the United States shall be removed

446
00:24:41,440 --> 00:24:45,000
Speaker 2: from office on impeachment for and conviction of treeson bribery,

447
00:24:45,040 --> 00:24:48,880
Speaker 2: other high crimes and misdemeanors, and so His argument is

448
00:24:48,960 --> 00:24:51,880
Speaker 2: if the president was an officer of the United States,

449
00:24:51,960 --> 00:24:55,520
Speaker 2: there would be no need to specify the president, vice president,

450
00:24:55,960 --> 00:25:00,280
Speaker 2: and all civil officers. So that's the argument. There's a

451
00:25:00,280 --> 00:25:03,320
Speaker 2: textual matter. It's not a crazy argument, but I would

452
00:25:03,320 --> 00:25:07,960
Speaker 2: be surprised if that persuades the court. The third argument

453
00:25:08,000 --> 00:25:12,440
Speaker 2: he makes is that as president, he took a different

454
00:25:12,680 --> 00:25:17,880
Speaker 2: oath than officers of the United States, and that demonstrates

455
00:25:17,880 --> 00:25:21,760
Speaker 2: he's not an officer. In particular, Section three bars from

456
00:25:21,800 --> 00:25:24,960
Speaker 2: office those who have taken an oath to quote support

457
00:25:25,040 --> 00:25:31,200
Speaker 2: the Constitution. And the president's oath of office is specified

458
00:25:31,200 --> 00:25:33,000
Speaker 2: in the text of the Constitution and it is not,

459
00:25:33,160 --> 00:25:35,920
Speaker 2: in fact an oath to support the Constitution. It is

460
00:25:35,960 --> 00:25:40,680
Speaker 2: an oath to quote, preserve, protect, and defend the Constitution.

461
00:25:42,560 --> 00:25:45,879
Speaker 2: I'm not terribly persuaded by that argument. It is technically

462
00:25:45,960 --> 00:25:49,280
Speaker 2: right that the word support is not there, but.

463
00:25:49,600 --> 00:25:51,280
Speaker 1: That would be one of the weaker arguments that they

464
00:25:51,280 --> 00:25:53,040
Speaker 1: would be making of their options.

465
00:25:53,119 --> 00:25:57,959
Speaker 2: Yeah, I would be surprised if the court grounded it

466
00:25:58,000 --> 00:26:01,600
Speaker 2: on supports different from preserve, protect, and defend.

467
00:26:02,880 --> 00:26:04,439
Speaker 1: By the way, when you go in there, as you're

468
00:26:04,520 --> 00:26:08,480
Speaker 1: laying out these arguments from his team in the oral arguments.

469
00:26:08,520 --> 00:26:10,800
Speaker 1: Would you make all of these or do you choose

470
00:26:10,840 --> 00:26:12,320
Speaker 1: the one you want to make that you think is

471
00:26:12,359 --> 00:26:15,560
Speaker 1: the one that they're willing to probably side with the most.

472
00:26:15,640 --> 00:26:17,640
Speaker 1: Do you pick your best or do you make all

473
00:26:17,680 --> 00:26:19,720
Speaker 1: of these saying here are the reasons why we think

474
00:26:19,760 --> 00:26:22,280
Speaker 1: this is wrong, and these are the different options.

475
00:26:22,320 --> 00:26:24,240
Speaker 4: How does that work in the oral arguments?

476
00:26:24,440 --> 00:26:28,320
Speaker 2: So it varies strategically. Typically, the way people will do

477
00:26:28,359 --> 00:26:31,400
Speaker 2: it is they will make they'll make all the arguments

478
00:26:31,440 --> 00:26:33,800
Speaker 2: they have reasonably available to them in the briefs.

479
00:26:33,840 --> 00:26:37,000
Speaker 3: The briefs are written documents.

480
00:26:37,040 --> 00:26:39,720
Speaker 2: They are typically in the US Supreme Court emerits brief

481
00:26:39,760 --> 00:26:42,920
Speaker 2: is tip typically fifty pages long, and it's a booklet.

482
00:26:42,960 --> 00:26:47,199
Speaker 2: It's a booklet that is oh about three fourths the

483
00:26:47,280 --> 00:26:49,720
Speaker 2: size of a sheet of notebook paper. And so it's

484
00:26:49,760 --> 00:26:55,880
Speaker 2: a bound little booklet fifty pages long. And in your

485
00:26:55,920 --> 00:26:58,639
Speaker 2: written briefs, I would expect them to make all of

486
00:26:58,680 --> 00:27:03,639
Speaker 2: these arguments in oral argument, A good oral advocate is

487
00:27:03,680 --> 00:27:04,919
Speaker 2: going to prioritize it.

488
00:27:04,960 --> 00:27:06,600
Speaker 4: Is that the same for good on the spring where

489
00:27:06,640 --> 00:27:07,040
Speaker 4: it works?

490
00:27:07,520 --> 00:27:10,960
Speaker 1: Those books that you're talking about, is that the same

491
00:27:11,000 --> 00:27:13,359
Speaker 1: book that you have for every justice?

492
00:27:13,480 --> 00:27:14,840
Speaker 4: Or can you taper them?

493
00:27:15,200 --> 00:27:17,480
Speaker 3: None of different you file.

494
00:27:17,520 --> 00:27:22,360
Speaker 2: Each side files uh the petitioner will file an opening

495
00:27:22,400 --> 00:27:26,640
Speaker 2: brief that is fifty pages, the respondent will file a

496
00:27:26,720 --> 00:27:29,280
Speaker 2: response brief that is fifty pages, and then the petitioner

497
00:27:29,320 --> 00:27:32,400
Speaker 2: gets to file a reply. So there'll be three briefs

498
00:27:32,400 --> 00:27:35,439
Speaker 2: filed by the parties, two by the petitioner, one by

499
00:27:35,480 --> 00:27:40,280
Speaker 2: the respondent, and then amiki amik is Latin for amicus

500
00:27:40,400 --> 00:27:43,080
Speaker 2: kurei which friend of the court. And there will be

501
00:27:43,119 --> 00:27:47,639
Speaker 2: other parties that are a mek file briefs urging the

502
00:27:47,680 --> 00:27:48,720
Speaker 2: court to do something.

503
00:27:49,600 --> 00:27:50,800
Speaker 3: But an oral argument.

504
00:27:51,000 --> 00:27:56,199
Speaker 2: A good oral advocate will prioritize the best arguments. And

505
00:27:56,280 --> 00:28:00,760
Speaker 2: one of the things what really differentiates the best oral

506
00:28:00,800 --> 00:28:06,400
Speaker 2: advocates from ones that are merely okay are their ability

507
00:28:06,440 --> 00:28:09,160
Speaker 2: to read the court and pivot. So what I argued

508
00:28:09,280 --> 00:28:12,320
Speaker 2: nine cases at the court, what I very much tried

509
00:28:12,359 --> 00:28:15,959
Speaker 2: to do is watch and read the justices, and if

510
00:28:16,000 --> 00:28:18,080
Speaker 2: there was an argument that I was making, I would

511
00:28:18,080 --> 00:28:20,439
Speaker 2: have thought through what are my best arguments, and so

512
00:28:20,480 --> 00:28:22,600
Speaker 2: I'd come in with a pretty clear idea, all right,

513
00:28:23,080 --> 00:28:25,160
Speaker 2: here's the ground on which I think I can win

514
00:28:25,200 --> 00:28:28,880
Speaker 2: for my client. But in the course of the questioning,

515
00:28:28,960 --> 00:28:31,480
Speaker 2: if I see an opening for a justice whose vote

516
00:28:31,480 --> 00:28:34,480
Speaker 2: I need to get, and maybe I think arguments one

517
00:28:34,480 --> 00:28:38,360
Speaker 2: and two are really good and one justice likes argument three.

518
00:28:38,440 --> 00:28:43,240
Speaker 2: A good oral advocate will pivot based on where the

519
00:28:43,400 --> 00:28:46,920
Speaker 2: justices are and read the justices. And by the way

520
00:28:46,960 --> 00:28:52,200
Speaker 2: I would expect, because I believe John Roberts passionately wants

521
00:28:52,240 --> 00:28:56,680
Speaker 2: this to be unanimous, I would advise Trump's attorney to

522
00:28:56,920 --> 00:29:00,600
Speaker 2: listen to John Roberts very carefully. So before John Roberts

523
00:29:00,600 --> 00:29:04,960
Speaker 2: was Chief Justice, he was a Supreme Court advocate, and

524
00:29:05,000 --> 00:29:08,040
Speaker 2: he was I think the finest Supreme Court advocate of

525
00:29:08,040 --> 00:29:08,520
Speaker 2: his generation.

526
00:29:08,600 --> 00:29:10,240
Speaker 4: When you say advocate, what does that mean?

527
00:29:10,360 --> 00:29:10,600
Speaker 3: Lawyer?

528
00:29:10,680 --> 00:29:12,480
Speaker 1: He argued in front of the Spring Court he was

529
00:29:12,520 --> 00:29:14,200
Speaker 1: if if you wanted to go to the Supreme Court,

530
00:29:14,320 --> 00:29:16,960
Speaker 1: have a good chance of winning, this is a guy

531
00:29:17,000 --> 00:29:18,880
Speaker 1: you'd want to be making the arguments in your behalf.

532
00:29:18,920 --> 00:29:20,320
Speaker 4: That's your definition of an advocate.

533
00:29:20,400 --> 00:29:21,800
Speaker 3: So John Roberts was.

534
00:29:21,880 --> 00:29:25,400
Speaker 2: He was the Deputy Solicitor General, the principal deputy Solicitor

535
00:29:25,480 --> 00:29:29,560
Speaker 2: General under George Herbert Walker Bush so Bush forty one,

536
00:29:29,640 --> 00:29:33,000
Speaker 2: the first Bush. He was Ken Starr's deputy. So Ken

537
00:29:33,160 --> 00:29:36,120
Speaker 2: was the solicitor General. John Roberts was the deputy Solicitor

538
00:29:36,120 --> 00:29:40,080
Speaker 2: General Principal Deputy. And from there he went to Hogan

539
00:29:40,120 --> 00:29:42,760
Speaker 2: and Hartston, which is a DC law firm, and he

540
00:29:42,880 --> 00:29:45,360
Speaker 2: led their Supreme Court practice. And in Bush versus Gore,

541
00:29:45,440 --> 00:29:47,520
Speaker 2: John was part of our legal team. I recruited John.

542
00:29:47,560 --> 00:29:51,840
Speaker 2: I called John on the phone from Tallahassee and said, John,

543
00:29:51,880 --> 00:29:53,680
Speaker 2: we need you down here, and he flew down and

544
00:29:53,720 --> 00:29:56,680
Speaker 2: joined our legal team. And so Bush versus Gore. I

545
00:29:56,760 --> 00:29:59,600
Speaker 2: litigated it alongside John, worked on the briefs with him.

546
00:30:00,320 --> 00:30:03,240
Speaker 2: Ted Olsen did the oral arguments, but John was part

547
00:30:03,280 --> 00:30:07,360
Speaker 2: of the mooting team that was asking Ted the questions

548
00:30:07,400 --> 00:30:10,800
Speaker 2: and preparing Ted for the arguments. When I was clerking

549
00:30:10,800 --> 00:30:14,680
Speaker 2: for Chief Justice Renquist, my co clerks and I we

550
00:30:14,760 --> 00:30:16,960
Speaker 2: asked the Chief We said, all right, you see lots

551
00:30:16,960 --> 00:30:20,560
Speaker 2: of lawyers, who's the best Supreme Court advocate in the country?

552
00:30:21,240 --> 00:30:23,400
Speaker 2: And Rehnquist laughed and he said, you know, I think

553
00:30:23,440 --> 00:30:26,040
Speaker 2: I could get a majority of my colleagues to say

554
00:30:26,120 --> 00:30:28,360
Speaker 2: John Roberts is the best Supreme Court advocate alive.

555
00:30:28,440 --> 00:30:28,840
Speaker 4: Wow.

556
00:30:29,160 --> 00:30:29,880
Speaker 3: And I agree with that.

557
00:30:29,960 --> 00:30:31,960
Speaker 2: I've seen John argue multiple cases, and I think it

558
00:30:32,000 --> 00:30:37,120
Speaker 2: was hands down like he was just when I argued cases.

559
00:30:37,600 --> 00:30:41,200
Speaker 2: I tried to emulate John Roberts' argument style because he

560
00:30:41,280 --> 00:30:45,040
Speaker 2: was so good. And so when I was arguing cases, Now,

561
00:30:45,040 --> 00:30:48,400
Speaker 2: look when I started arguing cases when Renquist was still chief,

562
00:30:48,840 --> 00:30:51,000
Speaker 2: and then I argued a number of cases with Roberts's

563
00:30:51,080 --> 00:30:53,880
Speaker 2: Chief And I'll tell you what I did when I

564
00:30:53,920 --> 00:30:57,920
Speaker 2: was arguing with Roberts's chief is I'm looking at the

565
00:30:57,920 --> 00:31:00,600
Speaker 2: best Supreme Court advocate alive who have to be sitting

566
00:31:00,600 --> 00:31:03,240
Speaker 2: in the center seat. And part of what made him

567
00:31:03,280 --> 00:31:05,960
Speaker 2: so good is he was more skilled than anyone else

568
00:31:06,040 --> 00:31:09,880
Speaker 2: at reading the other justices and the swing justice in particular,

569
00:31:09,920 --> 00:31:12,280
Speaker 2: back when it was Kennedy and O'Connor who were the

570
00:31:12,280 --> 00:31:15,480
Speaker 2: swing justices, John Roberts was excellent at it. So in

571
00:31:15,560 --> 00:31:20,120
Speaker 2: the argument, I would pay very close attention to Chief

572
00:31:20,240 --> 00:31:23,800
Speaker 2: Justice Roberts because if he laid out an argument, he's

573
00:31:24,000 --> 00:31:27,960
Speaker 2: telling you, I think this is the theory that gets

574
00:31:28,040 --> 00:31:31,280
Speaker 2: Kennedy and O'Connor, and so I would pivot very much.

575
00:31:31,320 --> 00:31:36,360
Speaker 2: And my advice for Trump's lawyer is pay really close

576
00:31:36,400 --> 00:31:39,280
Speaker 2: attention to what Roberts is saying, because he's not just

577
00:31:39,440 --> 00:31:43,600
Speaker 2: asking for himself, he's asking on the theory he thinks

578
00:31:43,680 --> 00:31:45,200
Speaker 2: is most likely to unify the.

579
00:31:45,120 --> 00:31:48,040
Speaker 1: Court and get you to that nine zero unanimous decision. Yeah,

580
00:31:48,320 --> 00:31:50,520
Speaker 1: how long are they going to have to argue this?

581
00:31:50,640 --> 00:31:52,960
Speaker 1: I mean when you talk about oral arguments, is it

582
00:31:53,000 --> 00:31:53,920
Speaker 1: is it ours?

583
00:31:54,080 --> 00:31:55,920
Speaker 4: Is it ninety minutes? What are we talking about?

584
00:31:55,920 --> 00:31:58,720
Speaker 2: So normally an argument is an hour. So normally each

585
00:31:58,760 --> 00:32:01,400
Speaker 2: side has thirty minutes. They can extend it. They might

586
00:32:01,480 --> 00:32:04,280
Speaker 2: extend it in this instance. I don't know, but normally

587
00:32:04,320 --> 00:32:07,560
Speaker 2: an argument is an hour. And the bulk of the argument,

588
00:32:07,600 --> 00:32:10,640
Speaker 2: by the way, is questioning from the justices. So you

589
00:32:10,720 --> 00:32:13,520
Speaker 2: get up and the justices are asking you questions, and

590
00:32:13,560 --> 00:32:17,040
Speaker 2: that it's a back and forth. It's not a mile.

591
00:32:17,080 --> 00:32:21,120
Speaker 2: Is a statement there is? There didn't used to be.

592
00:32:21,240 --> 00:32:25,600
Speaker 2: So the old way they did Supreme Court arguments was

593
00:32:25,680 --> 00:32:27,680
Speaker 2: you would start off, you'd stand up and you'd say,

594
00:32:27,680 --> 00:32:29,440
Speaker 2: mister Chief Justice, and may it please the court? And

595
00:32:29,440 --> 00:32:34,160
Speaker 2: every argument begins with that, and you would sometimes get

596
00:32:36,440 --> 00:32:40,080
Speaker 2: less than a sentence into your argument and a justice

597
00:32:40,080 --> 00:32:43,120
Speaker 2: would jump in and pepper you with questions and what

598
00:32:43,200 --> 00:32:45,800
Speaker 2: made it invigoratings? You'd have a question here, a question here,

599
00:32:45,880 --> 00:32:49,360
Speaker 2: question here, and it was just non stop, and you

600
00:32:49,440 --> 00:32:53,280
Speaker 2: had to be quick and fast and anticipate justices who

601
00:32:53,280 --> 00:32:55,880
Speaker 2: disagreed with your position. They're trying to ask you questions

602
00:32:55,880 --> 00:32:58,239
Speaker 2: to expose the weakness of your case, and you had

603
00:32:58,240 --> 00:33:03,960
Speaker 2: to anticipate it. They have post COVID, they regimented it now,

604
00:33:04,640 --> 00:33:06,600
Speaker 2: and I really don't like how they do it now.

605
00:33:06,680 --> 00:33:10,640
Speaker 2: But they now have a period of questioning from each justice,

606
00:33:10,680 --> 00:33:13,080
Speaker 2: and so it's a little it's not the wild face.

607
00:33:13,480 --> 00:33:15,640
Speaker 1: It's almost like Congress, where you have five minutes or

608
00:33:15,640 --> 00:33:17,760
Speaker 1: you have three minutes, and then you go in this order.

609
00:33:17,760 --> 00:33:20,240
Speaker 1: Whereas before it could be a conservative just as to

610
00:33:20,280 --> 00:33:22,480
Speaker 1: your question, followed up by a liberal justice to your question,

611
00:33:22,520 --> 00:33:24,480
Speaker 1: followed up by another justice asking your question.

612
00:33:24,960 --> 00:33:27,360
Speaker 4: It was it was control chaos.

613
00:33:27,200 --> 00:33:27,880
Speaker 3: It was, yes.

614
00:33:28,880 --> 00:33:32,480
Speaker 2: But it is more regimented now. But I would say

615
00:33:32,880 --> 00:33:36,120
Speaker 2: I would expect the chief justices questions to lay out

616
00:33:36,240 --> 00:33:39,800
Speaker 2: in the questions what he think thinks is the best

617
00:33:39,840 --> 00:33:41,720
Speaker 2: theory to bring the court together. All right, let me

618
00:33:41,800 --> 00:33:44,320
Speaker 2: give you the rest of Trump's arguments. Fourth argument he

619
00:33:44,360 --> 00:33:48,000
Speaker 2: makes is that Trump did not participate in an insurrection,

620
00:33:48,200 --> 00:33:51,480
Speaker 2: because an insurrection, as understood at the time of passage

621
00:33:51,480 --> 00:33:54,440
Speaker 2: of the Fourteenth Amendment, means the taking up of arms

622
00:33:54,440 --> 00:33:57,960
Speaker 2: and waging war upon the United States. Now, I think

623
00:33:58,000 --> 00:34:01,560
Speaker 2: that's absolutely correct. I think it's ludicrous to say that

624
00:34:01,600 --> 00:34:04,760
Speaker 2: Trump engaged in an insurrection based on the facts. I

625
00:34:04,800 --> 00:34:08,279
Speaker 2: also do not believe the Supreme Court will conclude that

626
00:34:08,360 --> 00:34:11,000
Speaker 2: because you can't get nine justices for that, and I

627
00:34:11,040 --> 00:34:14,640
Speaker 2: think they will want unanimity, and so they'll say, look,

628
00:34:14,880 --> 00:34:18,000
Speaker 2: my guess is we might get a concurrence from one

629
00:34:18,040 --> 00:34:21,680
Speaker 2: of the more conservative justices saying this clearly was not

630
00:34:21,760 --> 00:34:26,000
Speaker 2: an insurrection, but we might not. And by the way, look,

631
00:34:26,040 --> 00:34:28,799
Speaker 2: I said that there's a sixty to seventy percent chance

632
00:34:28,840 --> 00:34:31,560
Speaker 2: of it being unanimous. That means there's a forty to

633
00:34:32,280 --> 00:34:36,200
Speaker 2: thirty to forty percent chance that the liberal justices just

634
00:34:36,239 --> 00:34:38,759
Speaker 2: hate Trump so much they can't bring themselves to do it.

635
00:34:38,920 --> 00:34:40,200
Speaker 4: And what would that decision look like.

636
00:34:40,280 --> 00:34:42,000
Speaker 1: I mean, would it be one or two that say, hey,

637
00:34:42,200 --> 00:34:43,920
Speaker 1: just for the principle and said nine, we're going to

638
00:34:43,960 --> 00:34:47,359
Speaker 1: go seven to here, or even go sixty three.

639
00:34:47,719 --> 00:34:51,000
Speaker 3: Look, sixty three would be heartbreaking.

640
00:34:51,480 --> 00:34:53,920
Speaker 2: It would do real day in this country to the

641
00:34:53,960 --> 00:34:56,480
Speaker 2: Court and to the country if it just broke on

642
00:34:56,560 --> 00:35:00,840
Speaker 2: partisan lines. If the three liberal justices dissented and the

643
00:35:01,320 --> 00:35:04,239
Speaker 2: six more conservative justices were in the majority, I think

644
00:35:04,280 --> 00:35:09,440
Speaker 2: that would be terrible for the court, and I really

645
00:35:09,600 --> 00:35:15,560
Speaker 2: hope it's not so. The fifth argument that Trump made

646
00:35:16,840 --> 00:35:21,080
Speaker 2: is that the Elector's Clause requires states to appoint presidential

647
00:35:21,120 --> 00:35:26,000
Speaker 2: electures quote, in such matter as the legislature thereof may direct.

648
00:35:26,040 --> 00:35:29,520
Speaker 2: In other words, the courts can't intervene in that. The

649
00:35:29,640 --> 00:35:35,880
Speaker 2: sixth argument is that Section three cannot be used to

650
00:35:35,920 --> 00:35:39,840
Speaker 2: deny a candidate access to the ballot. It can only

651
00:35:39,880 --> 00:35:45,120
Speaker 2: be used instead to prevent someone from holding office. So

652
00:35:45,360 --> 00:35:50,400
Speaker 2: all of those are arguments, as I said, and you

653
00:35:50,400 --> 00:35:54,560
Speaker 2: know it's and it's horse. By the way, the argument

654
00:35:54,600 --> 00:35:59,680
Speaker 2: that I think will will fly is the argument that

655
00:36:01,360 --> 00:36:08,239
Speaker 2: it was not adequately determined that Trump had participated in insurrection,

656
00:36:08,520 --> 00:36:12,000
Speaker 2: not that there wasn't an insurrection, but that the means

657
00:36:12,080 --> 00:36:13,520
Speaker 2: of ascertaining that.

658
00:36:14,760 --> 00:36:16,480
Speaker 1: When that goes back to Jack Smith and what you're

659
00:36:16,480 --> 00:36:19,799
Speaker 1: talking about, he was never charged, much less convicted, and

660
00:36:19,880 --> 00:36:22,200
Speaker 1: it didn't work its way through the court system. And

661
00:36:22,280 --> 00:36:24,960
Speaker 1: so if you believe that Donald Trump in fact was

662
00:36:25,000 --> 00:36:27,200
Speaker 1: a part of an insurrection, then charge him with it,

663
00:36:27,560 --> 00:36:29,640
Speaker 1: get him convicted of it, then you have that different

664
00:36:29,719 --> 00:36:31,080
Speaker 1: argument goes back to what you were saying at the

665
00:36:31,160 --> 00:36:31,720
Speaker 1: very beginning.

666
00:36:32,800 --> 00:36:35,839
Speaker 2: Yes, and I will say look, one of the questions

667
00:36:36,239 --> 00:36:40,480
Speaker 2: that will be front and center litigated is whether Section

668
00:36:40,680 --> 00:36:44,880
Speaker 2: three is self executing. Self executing means a provision of

669
00:36:44,920 --> 00:36:47,720
Speaker 2: the Constitution that has force of law, that doesn't need

670
00:36:48,200 --> 00:36:52,600
Speaker 2: Congress to pass legislation to enforce it, and that will

671
00:36:52,640 --> 00:37:00,680
Speaker 2: be actively disputed. And in the Colorado Supreme Court, one

672
00:37:00,719 --> 00:37:04,200
Speaker 2: of the justices, Justice Carlos Simour, dissented on this point.

673
00:37:05,239 --> 00:37:07,600
Speaker 2: And what he said is that the majority opinion of

674
00:37:07,600 --> 00:37:11,759
Speaker 2: Colorado stripped President Trump of due process of the due

675
00:37:11,760 --> 00:37:15,400
Speaker 2: process of law, and he says Section three didn't specify

676
00:37:15,440 --> 00:37:18,640
Speaker 2: the procedures that have to be followed to be determined

677
00:37:18,680 --> 00:37:22,400
Speaker 2: whether someone is engaged insurrection. All the Democrats is absurd.

678
00:37:22,480 --> 00:37:26,200
Speaker 2: It's insurrection. It's insurrection, but that hasn't been determined as

679
00:37:26,200 --> 00:37:32,880
Speaker 2: a legal matter, and so Justice Samour concluded the Section

680
00:37:33,000 --> 00:37:37,560
Speaker 2: three is not self executing and requires legislation for enforcement.

681
00:37:37,719 --> 00:37:43,080
Speaker 2: And he argued that the lower courts proceeding in Colorado

682
00:37:44,280 --> 00:37:48,439
Speaker 2: lacked basic discovery, lacked the ability to subpoena documents, lacked

683
00:37:48,480 --> 00:37:52,319
Speaker 2: the ability to compel witnesses, lacked any time frame to

684
00:37:52,400 --> 00:37:56,560
Speaker 2: investigate or developed defenses, and lacked the opportunity for a

685
00:37:56,600 --> 00:38:04,279
Speaker 2: fair trial. And he pointed out that in his view,

686
00:38:04,320 --> 00:38:09,280
Speaker 2: Section three cannot be self executing because it doesn't provide

687
00:38:09,280 --> 00:38:12,840
Speaker 2: any procedural guides. For example, Section three the Fourteenth Amendment

688
00:38:13,560 --> 00:38:16,000
Speaker 2: is completely silent on whether a jury has to be

689
00:38:16,000 --> 00:38:18,680
Speaker 2: impaneled or not. Can a judge decide it? Or does

690
00:38:18,719 --> 00:38:20,400
Speaker 2: it have to be a jury your peer as well?

691
00:38:20,560 --> 00:38:23,920
Speaker 2: Section three doesn't say it. What's the burden of proof?

692
00:38:24,600 --> 00:38:27,960
Speaker 2: Is it beyond a reasonable doubt? Is clear and convincing evidence?

693
00:38:28,040 --> 00:38:30,279
Speaker 2: Is it simply a preponderance of the evidence. Those are

694
00:38:30,480 --> 00:38:34,520
Speaker 2: very different burdens of proof. Constitution is silence on that.

695
00:38:34,560 --> 00:38:37,120
Speaker 2: What's the standard of review, what's the standard of discovery,

696
00:38:37,120 --> 00:38:39,839
Speaker 2: what's the standard of evidence? Is it a civil determination

697
00:38:39,960 --> 00:38:43,120
Speaker 2: or criminal determination? None of that is there. And so

698
00:38:44,320 --> 00:38:49,319
Speaker 2: what he argues is that Congress could pass legislation to

699
00:38:49,360 --> 00:38:50,080
Speaker 2: adjudicate that.

700
00:38:52,440 --> 00:38:54,359
Speaker 3: I'm not entirely persuaded on that.

701
00:38:54,440 --> 00:38:57,000
Speaker 2: What I would say is Congress has passed legislation when

702
00:38:57,000 --> 00:39:00,520
Speaker 2: it's set up a criminal statute for insurrection, that there

703
00:39:00,640 --> 00:39:04,480
Speaker 2: is a mechanism and it is a criminal trial.

704
00:39:04,680 --> 00:39:07,080
Speaker 4: And charge him and charge him. And so you go

705
00:39:07,200 --> 00:39:09,280
Speaker 4: back to the very beginning of what you said.

706
00:39:09,880 --> 00:39:12,200
Speaker 1: No one has had the kons to charge them because

707
00:39:12,200 --> 00:39:13,360
Speaker 1: they know they would lose.

708
00:39:13,680 --> 00:39:17,400
Speaker 2: You could not prove the case in court, which is

709
00:39:17,480 --> 00:39:20,720
Speaker 2: why instead you have partisan judges or a partisan Secretary

710
00:39:20,760 --> 00:39:24,560
Speaker 2: of State just asserting it because they believe it is

711
00:39:24,600 --> 00:39:28,520
Speaker 2: a political matter. Now, on our next podcast, what I

712
00:39:28,520 --> 00:39:31,080
Speaker 2: want to walk into and go into is there is

713
00:39:31,120 --> 00:39:36,320
Speaker 2: some history and some Supreme Court history on the Fourteenth

714
00:39:36,360 --> 00:39:39,120
Speaker 2: Amendment in section three right after the Civil War and

715
00:39:39,239 --> 00:39:42,319
Speaker 2: Jefferson Davis in particular. So I'm going to give a

716
00:39:42,360 --> 00:39:45,120
Speaker 2: tease for our next podcast. I'm going to walk through

717
00:39:45,640 --> 00:39:50,479
Speaker 2: what happened with Jefferson Davis under the Fourteenth Amendment Section three.

718
00:39:50,520 --> 00:39:55,320
Speaker 2: But let's be clear, Jefferson Davis, by any measure, engaged

719
00:39:55,360 --> 00:40:00,400
Speaker 2: in dramatically different conduct leading the Confederacy in way aging

720
00:40:00,520 --> 00:40:03,680
Speaker 2: war with the United States for four years is very

721
00:40:03,680 --> 00:40:06,160
Speaker 2: different from giving a speech telling people to be peaceful

722
00:40:07,080 --> 00:40:13,399
Speaker 2: and so. But there is complicated precedent post Civil War.

723
00:40:13,440 --> 00:40:15,040
Speaker 2: In the next podcast will dive into that.

724
00:40:15,120 --> 00:40:17,080
Speaker 1: It's going to be very fun. This is why I

725
00:40:17,080 --> 00:40:20,719
Speaker 1: love doing this show. I also will get your political predictions.

726
00:40:20,800 --> 00:40:23,160
Speaker 1: I do want to end with one last thing, just

727
00:40:23,200 --> 00:40:26,440
Speaker 1: so people have that timeline you mentioned earlier. Supreme Court's

728
00:40:26,480 --> 00:40:28,319
Speaker 1: going to hear this. When and when do you think

729
00:40:28,360 --> 00:40:30,120
Speaker 1: we'll have a decision from the Supreme Court.

730
00:40:30,239 --> 00:40:33,640
Speaker 2: February eighth is when they hear the oral argument. I

731
00:40:33,640 --> 00:40:35,960
Speaker 2: think we will get a decision quickly. I think it's

732
00:40:36,040 --> 00:40:40,360
Speaker 2: possible it could be within days. I think it will

733
00:40:40,400 --> 00:40:43,840
Speaker 2: be at the very latest by March fifth, which is

734
00:40:43,840 --> 00:40:47,359
Speaker 2: when the Colorado primary is. And my guess is it'll

735
00:40:47,400 --> 00:40:49,600
Speaker 2: be a week or two. That's just it'll be as

736
00:40:49,640 --> 00:40:51,839
Speaker 2: quick as they can write the opinions. But I think

737
00:40:51,880 --> 00:40:54,600
Speaker 2: they will feel an urge to move quickly.

738
00:40:55,120 --> 00:40:57,600
Speaker 1: It's going to be incredible, that's phenomenal. We're going to

739
00:40:57,680 --> 00:41:00,160
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740
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784
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785
00:43:18,719 --> 00:43:21,120
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786
00:43:21,160 --> 00:43:21,759
Speaker 4: We'll see you then,