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Speaker 1: Your listening to the Bloomberg Balance of Power podcast. Catch

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Speaker 1: Just Live weekdays at noon Eastern on Evilcarplay and Rodoto

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Speaker 1: with the Bloomberg Business App. Listen on demand wherever you

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Speaker 1: get your podcasts, or watch us live on YouTube.

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Speaker 2: Oral arguments now in Trump versus Anderson. This is the

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Speaker 2: ballot access case, not to be confused with the one

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Speaker 2: about presidential immunity. We're waiting to hear likely from the

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Speaker 2: Supreme Court on that as well, But what we haven't

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Speaker 2: gotten that far yet today is about primary ballot access

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Speaker 2: after he was removed from the ballot by the Colorado

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Speaker 2: Supreme Court.

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Speaker 3: This brings us back to December.

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Speaker 2: This is a case involving the fourteenth Amendment and it

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Speaker 2: has to do with whether Donald Trump actually engaged in

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Speaker 2: and that's the appropriate term to use here, insurrection. Dave

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Speaker 2: Ehrenberg's got his eyes on this from his perch in Florida.

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Speaker 2: The Palm Beach County State Attorney is with us now,

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Speaker 2: and David, it's great to see you.

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Speaker 3: It's been a minute.

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Speaker 2: I wonder if you can just first before we analyze

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Speaker 2: all of this, and we don't need to re litigate

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Speaker 2: what happened on January sixth. I want to understand what

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Speaker 2: are the questions that the justices are trying to ask here, whether,

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Speaker 2: in fact, beginning with the big one, whether in fact

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Speaker 2: Donald Trump engaged in insurrection.

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Speaker 3: How do you answer that question?

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Speaker 4: Well, Joe, good to be with you.

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Speaker 5: As expected, the justices are largely avoiding that question. Instead,

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Speaker 5: they're dealing with larger constitutional issues, such as, did the

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Speaker 5: framers in ten that states would go ahead and do

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Speaker 5: this on their own? Or would Congress have to pass

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Speaker 5: a law? Is the fourteenth Amendment self executing? And although

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Speaker 5: I think in the end they will probably say that

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Speaker 5: the fourteenth Amendment is self executing, meaning you don't need

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Speaker 5: Congress to make it happen, there is still section five

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Speaker 5: of the fourteenth Amendment which says that Congress shall enforce

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Speaker 5: this section. So what I think the Court's going to

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Speaker 5: do is they're going to punt and they're going to say, hey, Congress,

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Speaker 5: do your job. Pass some uniform law so we don't

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Speaker 5: have fifty different states going in fifty different directions. Because

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Speaker 5: even the liberal justices were worried that Colorado as one state,

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Speaker 5: could decide the election for the whole country, and they

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Speaker 5: didn't want mass chaos so I think, to me, the

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Speaker 5: only question I have is whether this will be a

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Speaker 5: unanimous nine zero opinion that overturns the Colorado Supreme Court case,

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Speaker 5: or will it be eight to one with Justice Soda

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Speaker 5: Mayor of dissenting, Because it seems like even the liberal justices,

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Speaker 5: with the exception of possibly Soda Mayor, are going to

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Speaker 5: go along with the majority of the conservatives on this one.

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Speaker 3: Interesting. This is.

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Speaker 2: A pretty interesting moment for this court. And I know

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Speaker 2: that at least the conventional wisdom is they want to

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Speaker 2: be very careful here. Was the fourteenth Amendment really just

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Speaker 2: about the Civil War, Dave, Because a lot of people

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Speaker 2: seem to think so.

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Speaker 5: Well, it's about preventing insurrectionists from getting into power again.

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Speaker 4: I mean, it was.

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Speaker 5: Written in response to the Civil War, and it was

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Speaker 5: not meant just pertain to that. This was meant to

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Speaker 5: pertain to any traders in government. They didn't want any

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Speaker 5: future insurrectionists, any traders to be elected to office, people

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Speaker 5: who were in office at the time of an insurrection

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Speaker 5: and then later tried to stay in office.

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Speaker 4: They didn't want those folks.

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Speaker 5: Now, one question, one issue that Trump's lawyers are making

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Speaker 5: is that they want him to be exempt from the

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Speaker 5: Fourteenth Amendment because they like to say that the Fourteenth

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Speaker 5: Amendment at section three does not include the president. So

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Speaker 5: what they're trying to say is that the framers of

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Speaker 5: the amendment were so worried about having insurrectionists lead the

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Speaker 5: way in our government except for being president. Like they

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Speaker 5: could be senators, they can be. They don't want them

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Speaker 5: to be senators, they don't want to be congressmen. But

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Speaker 5: it's okay or an insurrections to be the president. That

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Speaker 5: defies common sense. So I think that argument is a

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Speaker 5: loser for Trump's side. I think ultimately, though, the Supreme

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Speaker 5: Court is going to say, come on, we can't have

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Speaker 5: fifty different states going in fifty different directions. This would

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Speaker 5: be mass chaos. Let Congress establish some uniform set of

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Speaker 5: rules here.

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Speaker 2: If the Court David has to consider whether Donald Trump

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Speaker 2: engaged in an insurrection, it also has to establish whether

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Speaker 2: January sixth was an insurrection.

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Speaker 5: Right, they don't actually have to go into whether Trump

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Speaker 5: engage in insurrection. That would be an embarrassing review because look,

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Speaker 5: all the justices in Colorado, even the one trial court

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Speaker 5: judge that ruled for Trump, all agree that he engaged

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Speaker 5: in insurrection. The Supreme Court is not going to tackle that.

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Speaker 5: They're going to avoid it, and they're just going to

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Speaker 5: do with conscertional issues because if they did deal with it,

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Speaker 5: it would get really messy, and they don't have to.

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Speaker 5: They don't like to get their hands dirty where they

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Speaker 5: don't have to. One thing I must add, Joe is

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Speaker 5: that I'm a little disturbed that Justice Clarence Thomas not

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Speaker 5: only is sitting on the bench for this case despite

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Speaker 5: what seems to me having a conflict because his wife

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Speaker 5: was part of the whole surrection attempt, but he also

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Speaker 5: asked the very first question from the bench, and so

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Speaker 5: it just shows you why so many people have a

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Speaker 5: low estimation of the High Court.

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Speaker 2: Dick Durbin had called on him the share of the

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Speaker 2: Judiciary Committee in the Senate, to do that very thing

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Speaker 2: and recuse himself by Monday. Dave Ehrenberg, Donald Trump is

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Speaker 2: also expected and it could come before then to ask

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Speaker 2: the Supreme Court to rule on this immunity claim.

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Speaker 3: Where do you see that going?

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Speaker 5: Well, yeah, I think he's going to lose there. But

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Speaker 5: the question is how long will the Supreme Court take

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Speaker 5: to act?

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Speaker 4: Now?

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Speaker 5: They could just accept the review or accept the petition

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Speaker 5: and then deny the review, and hopefully that'll happen because

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Speaker 5: that will speed things up and then we can get

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Speaker 5: to the trial before the election. On the other hand,

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Speaker 5: they could sit on it and they could review it,

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Speaker 5: and they could make it impossible to try this case

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Speaker 5: before the election.

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Speaker 4: It's all in the hands of the Supreme Court.

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Speaker 5: My best guess is that they don't want to wait

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Speaker 5: into this one much either, especially because the DC Circuit

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Speaker 5: Court of Appeals issued a very comprehensive, very strong opinion

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Speaker 5: that I think the Supreme Court is just.

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Speaker 4: Going to defer to.

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Speaker 5: And when that happens, because I think it's a when,

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Speaker 5: I think, then it's game on in DC and Judge

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Speaker 5: Chuckkin is going to move forward with that trial or

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Speaker 5: election interference, perhaps sometime in the late spring.

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Speaker 2: So what's the most likely scenario then, as you just outline,

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Speaker 2: the Supreme Court decides to not take up the case

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Speaker 2: and just just let it lie where it is in

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Speaker 2: the appeals court, or they in fact uphold that ruling.

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Speaker 5: Is there a difference, yes, One is whether they take

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Speaker 5: it up, which is called cerciori or cert. Well, they

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Speaker 5: grant cert you need four judge justices to grant cert

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Speaker 5: out of the nine. I don't think they're going to

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Speaker 5: grant it because of the strength of the lower court ruling,

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Speaker 5: but they could, and then if they do, then there'll

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Speaker 5: be a built in stay and then we wait for

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Speaker 5: an opinion on the merits, and that would take a

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Speaker 5: lot longer. So a lot depends not necessarily how they

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Speaker 5: will rule, because I don't think there's a chance in

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Speaker 5: the world they're going to give a president absolute immunity

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Speaker 5: like Trump is seeking.

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Speaker 4: But Trump's strategy really is delayed, delayed, delay.

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Speaker 5: And if they grant cert and they take a long

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Speaker 5: time to review and make a decision, then Trump will

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Speaker 5: win by losing.

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Speaker 3: Wow, do you have timeline in mind?

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Speaker 2: I know you must hate being asked that, because nobody

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Speaker 2: knows what the heck The Supreme Court is going to do.

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Speaker 3: It can do whatever it wants, but will it be.

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Speaker 2: Compelled to rule quickly on both of these Fourteenth amendments

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Speaker 2: and presidential immunity.

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Speaker 4: Yes, they see what's going on, just like the rest

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Speaker 4: of us.

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Speaker 5: They know how important this is to get this done

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Speaker 5: before the election, and I think they want to. I mean,

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Speaker 5: Chief Justice Roberts cares so deeply about the legitimacy of

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Speaker 5: the court. He wants people to buy into the court

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Speaker 5: as an a political institution. But if they sit on

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Speaker 5: their hands and delay this thing so that he cannot

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Speaker 5: be tried until after the election, they will look very political.

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Speaker 5: So I think the Chief Justice is going to make

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Speaker 5: sure this happens sooner than later. And I do believe

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Speaker 5: that the two cases and only two cases involving Trump

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Speaker 5: that will be heard before the election will be the

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Speaker 5: DC case in front Judge chuck In. I think that's

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Speaker 5: the most powerful of the two cases. And then the

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Speaker 5: second case, I think the New York case involving the

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Speaker 5: Stormy Daniels hush money payments, will be heard before the election.

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Speaker 5: The other two criminal cases, the mar Lago documents case,

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Speaker 5: which I do believe is the strongest of all the cases,

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Speaker 5: that's got Judge Cannon, and she's slow walking that case.

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Speaker 5: That's not going to be heard before the election. And

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Speaker 5: the Fulton County case, with all the issues with Fannie

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Speaker 5: Willis and conflicts and all the complex rico issues, that's

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Speaker 5: not going to be heard before the election either.

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Speaker 3: Amazing. I don't know how you do that off the

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Speaker 3: top of your head.

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Speaker 2: Still great, insights from Dave Ehrenberg let us know when

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Speaker 2: you're back in the capitol. Palm Beach County State Attorney

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Speaker 2: with this year on balance of power