00:11:47.060I think all nine of them agreed we needed to take it.
00:11:48.920I don't think they hesitated on, of course, whether or not one of the two major party nominees is excluded from the ballots and the voters are prevented from voting.
00:12:03.440Under the Constitution, it is difficult to imagine a more consequential question and a question that demands the Supreme Court to get it.
00:12:12.220Look, I don't think the court was eager to get into this issue at all.
00:12:14.800If Colorado hadn't decided this, they would have touched it.
00:12:17.780The justices are not looking to opine on this.
00:12:20.260But once Colorado ruled, they had no choice and they had no choice but to do it quickly.
00:14:54.620And the divide, by and large, was the divide between those who had clerked at the court and those who had not clerked at the court.
00:15:02.900Almost without exception, those of us who had been law clerks at the Supreme Court believed the court would take the case.
00:15:08.320That even though in 2000 the court was not eager to get in the presidential race, it required, there was a responsibility for the court to resolve it.
00:15:17.680I think that's exactly what they feel here.
00:15:19.940Now, given that, if it's going to be a unanimous decision, and as I said, I think it is more likely than not that it is,
00:15:28.360then the court is not going to rule, I believe, that there was not an insurrection.
00:15:35.360Like, that's one ground you could reverse is say there was not an insurrection.
00:18:56.720And there's a reason no one has charged him with it because you couldn't pass the laugh test.
00:19:02.560So what I think the Supreme Court would say is, if you want to bar Trump from being on the ballot, charge him and convict him with insurrection.
00:19:21.880If Trump were convicted of insurrection, if anyone were convicted of insurrection, they would be barred from being on the ballot.
00:19:33.120When you look at Jack Smith, and I got to go back to this because you talk about these guys and all of the different things they've gone after Trump.
00:19:39.800And to remind people that the entire country, not one of these overzealous prosecutors, has gone after Trump for insurrection.
00:19:47.440Do you think Jack Smith probably sat in a room with a bunch of Democrats and said, is there any way we could get him?
00:19:54.180If we were going to try the case, how would we try the case?
00:19:57.180And then every time they went back to Donald Trump's own words of him saying, go peacefully, and the tweets of him saying, go peacefully, have a peaceful day.
00:20:04.060And the fact that he also said he offered up the National Guard, which Democrats, Pelosi said no to.
00:20:10.240So if you're trying to have an insurrection, would you try to do that as well?
00:20:13.220And understand, look, Section 3 of the 14th Amendment was passed in the wake of the Civil War.
00:20:18.300It was designed to stop people who had fought for the Confederacy from serving in Congress, from serving in elected office, from serving in government.
00:20:29.780If you were – so understand, when they were writing insurrection, they were thinking about the Civil War.
00:20:36.820Now, and we can in a minute go into – and we may even do an entire podcast, a separate podcast on some of the judicial precedent on a post-Civil War.
00:20:50.540But a potential response to what I just said, that the court would say if you want to bar Trump from the ballot, prosecute him and convict him of insurrection.
00:20:59.440A potential response was, well, post-Civil War, the Civil War officers who were banned, they were not always barred, prosecuted for insurrection.
00:21:10.340That's true, but I will say this, and it varied.
00:21:13.420But there was zero dispute that an insurrection had occurred.
00:21:21.060The predicate – you want to know what an insurrection is?
00:21:24.140Well, the Civil War lasted four years, and 600,000 Americans were killed.
00:21:31.060Like, they brought out cannons, they shot and killed each other and had a war for four years, and it's the bloodiest war in American history.
00:21:38.100That's what they were talking about when they said insurrection.
00:21:42.040Not a riot where some individuals committed individual acts of violence for which they were prosecuted and are serving jail terms.
00:21:50.780That is – but, like, the analogy is to the Civil War, and it's why no prosecutor can bring this case.
00:21:57.240All right, let me walk through some of the arguments that are at play.
00:22:02.080So here's what Trump argues to the Supreme Court in his cert petition.
00:22:05.520First, he argued that the Supreme Court took Congress's authority to resolve questions of presidential eligibility, that it is a political matter to determine rather than a legal question whether he is eligible under the 14th Amendment.
00:22:23.440And actually, in making this argument, he mentions President Obama and disputes about whether he was eligible to be president.
00:22:29.680He mentions Senator McCain when he ran for president, disputes about whether he was eligible.
00:23:19.760A second argument is that Section 3 does not reply to the office of the president.
00:23:27.260This is a real argument, but I'd be surprised if the Supreme Court agrees with this one.
00:23:31.660But let me give you what his basis is.
00:23:33.300Trump argues it based on three different grounds, that if you look at the phrase officer of the United States,
00:23:43.280it appears in three constitutional provisions other than Section 3 of the 14th Amendment.
00:23:50.380It appears in the appointments clause, which requires the president to appoint ambassadors, public ministers, and consuls,
00:23:58.000justices of the Supreme Court, and all other officers of the United States.
00:24:03.300And he points out, well, the president obviously can't appoint himself, so officers are something different than the president.
00:24:11.520Likewise, the commissions clause requires the president to commission all the officers of the United States.
00:24:19.800Again, the president doesn't commission himself.
00:24:22.260So the argument is officers of the United States are different from the president, which is a constitutional creation.
00:24:30.520And then also the impeachment clause, the clause that verdict started with.
00:24:35.620The impeachment clause says, quote, the president, vice president, and all civil officers of the United States
00:24:45.060shall be removed from office on impeachment for and conviction of treason, bribery, other high crimes and misdemeanors.
00:24:50.580And so his argument is, if the president was an officer of the United States, there would be no need to specify the president, vice president, and all civil officers.
00:25:03.840As a textual matter, it's not a crazy argument, but I would be surprised if that persuades the court.
00:25:09.960The third argument he makes is that as president, he took a different oath than officers of the United States, and that demonstrates he's not an officer.
00:25:23.220In particular, Section 3 bars from office those who have taken an oath to, quote, support the Constitution.
00:25:30.180And the president's oath of office is specified in the text of the Constitution, and it is not, in fact, an oath to support the Constitution.
00:25:39.720It is an oath to, quote, preserve, protect, and defend the Constitution.
00:25:46.660I'm not terribly persuaded by that argument.
00:25:49.340It is technically right that the word support is not there, but I would.
00:25:53.960That would be one of the weaker arguments that they would be making of their options.
00:25:57.360Yeah, I would be surprised if the court grounded it on supports different from preserve, protect, and defend.
00:27:01.860Typically, the way people will do it is they will make – they'll make all the arguments they have reasonably available to them in the briefs.
00:28:13.160Amici is Latin for amicus curiae, which is friend of the court.
00:28:17.340And there will be other parties that are amici that file briefs urging the court to do something.
00:28:24.460But an oral argument, a good oral advocate will prioritize the best arguments.
00:28:31.160And one of the things – what really differentiates the best oral advocates from ones that are merely okay are their ability to read the court and pivot.
00:28:43.380So when I argue nine cases at the court, what I very much tried to do is watch and read the justices.
00:28:50.920And if there was an argument that I was making, I would have thought through, what are my best arguments?
00:28:55.420And so I'd come in with a pretty clear idea, all right, here's the ground on which I think I can win for my client.
00:29:01.060But in the course of the questioning, if I see an opening for a justice whose vote I need to get, and maybe I think arguments one and two are really good, and one justice likes argument three,
00:29:13.680a good oral advocate will pivot based on where the justices are and read the justices.
00:29:20.640And by the way, I would expect, because I believe John Roberts passionately wants this to be unanimous, I would advise Trump's attorney to listen to John Roberts very carefully.
00:29:34.680So before John Roberts was chief justice, he was a Supreme Court advocate, and he was, I think, the finest Supreme Court advocate of his generation.
00:29:43.800When you say advocate, what does that mean?
00:29:45.480A lawyer. He argued in front of the Supreme Court.
00:29:47.200So he was, if you wanted to go to the Supreme Court and have a good chance of winning, this is a guy you'd want to be making the arguments on your behalf.
00:29:54.180That's your definition of an advocate.
00:29:55.500So John Roberts was, he was the deputy solicitor general, the principal deputy solicitor general under George Herbert Walker Bush.
00:30:37.520But John was part of the mooting team that was asking Ted the questions and preparing Ted for the arguments.
00:30:44.060When I was clerking for Chief Justice Rehnquist, my co-clerks and I, we asked the chief, we said, all right, you see lots of lawyers.
00:30:53.320Who's the best Supreme Court advocate in the country?
00:30:56.460And Rehnquist laughed and he said, you know, I think I could get a majority of my colleagues to say John Roberts is the best Supreme Court advocate alive.
00:31:05.200I've seen John argue multiple cases, and I think it was hands down.
00:31:07.880Like he was just – when I argued cases, I tried to emulate John Roberts' argument style because he was so good.
00:31:18.300And so when I was arguing cases – now, look, when I started arguing cases when Rehnquist was still chief, and then I argued a number of cases with Roberts' chief.
00:31:27.160And I'll tell you what I did when I was arguing with Roberts' chief is I'm looking at the best Supreme Court advocate alive who happens to be sitting in the center seat.
00:31:36.620And part of what made him so good is he was more skilled than anyone else at reading the other justices, and the swing justices in particular.
00:31:45.220Back when it was Kennedy and O'Connor who were the swing justices, John Roberts was excellent at it.
00:31:50.480So in the argument, I would pay very close attention to Chief Justice Roberts because if he laid out an argument, he's telling you I think this is the theory that gets Kennedy and O'Connor.
00:32:04.100And so I would pivot very much, and my advice for Trump's lawyer is pay really close attention to what Roberts is saying because he's not just asking for himself.
00:32:15.980He's asking on the theory he thinks is most likely to unify the court.
00:32:20.740And get you to that 9-0 unanimous decision.
00:32:23.200How long are they going to have to argue this?
00:32:25.960I mean when you talk about oral arguments, is it hours?
00:32:56.520So the old way they did Supreme Court arguments was you would start off, you'd stand up, and you'd say, Mr. Chief Justice, and may it please the court.
00:33:05.920And you would sometimes get less than a sentence into your argument, and a justice would jump in and pepper you with questions.
00:33:17.700And what made it invigorating is you'd have a question here, a question here, a question here, and it was just nonstop.
00:33:23.760And you had to be quick and fast and anticipate justices who disagreed with your position.
00:33:29.820They're trying to ask you questions to expose the weakness of your case, and you had to anticipate it.
00:33:35.460They have – post-COVID, they regimented it now.
00:33:39.880And I really don't like how they do it now, but they now have a period of questioning from each justice.
00:33:45.980And so it's a little – it's not the wild free-for-all.
00:33:48.520Well, it's almost like Congress where you have five minutes or you have three minutes, and then you go in this order, whereas before, it could be a conservative justice that asks you a question, followed up by a liberal justice that asks you a question, followed up by another justice that asks you a question.
00:34:06.620But I would say I would expect the chief justice's questions to lay out in the questions what he thinks is the best theory to bring the court together.
00:34:16.500All right, let me give you the rest of Trump's arguments.
00:34:18.520Fourth argument he makes is that Trump did not participate in an insurrection because an insurrection, as understood at the time of passage of the 14th Amendment, means the taking up of arms and waging war upon the United States.
00:34:32.320Now, I think that's absolutely correct.
00:34:34.660I think it's ludicrous to say that Trump engaged in an insurrection based on the facts.
00:34:39.840I also do not believe the Supreme Court will conclude that because you can't get nine justices for that.
00:34:48.920And so they'll say, look, my guess is we might get a concurrence from one of the more conservative justices saying this clearly was not an insurrection.
00:35:00.240And by the way, look, I said that there's a 60 to 70 percent chance of it being unanimous.
00:35:05.480That means there's a 40 to 30 percent – a 30 to 40 percent chance that the liberal justices just hate Trump so much they can't bring themselves to do it.
00:35:14.180And what would that decision look like?
00:35:15.500I mean, would it be one or two that say, hey, just for the principle and said, no, no, we're going to go 7-2 here or even go 6-3?
00:35:30.440If it just broke on partisan lines, if the three liberal justices dissented and the six more conservative justices were in the majority, I think that would be terrible for the court.
00:35:46.560So the fifth argument that Trump made is that the electors' clause requires states to appoint presidential electors, quote, in such matter as the legislature thereof may direct.
00:36:01.320In other words, the courts can't intervene in that.
00:36:03.960The sixth argument is that Section 3 cannot be used to deny a candidate access to the ballot.
00:36:13.880It can only be used instead to prevent someone from holding office.
00:36:22.720As I said, and it's worth, by the way, the argument that I think will fly is the argument that it was not adequately determined that Trump had participated in an insurrection.
00:36:43.400Not that there wasn't an insurrection, but that the means of ascertaining that was.
00:36:50.140And that goes back to Jack Smith and what you're talking about.
00:36:52.040He was never charged, much less convicted.
00:36:54.780And it didn't work its way through the court system.
00:36:57.340And so if you believe that Donald Trump, in fact, was a part of an insurrection, then charge him with it.
00:37:59.540But that hasn't been determined as a legal matter.
00:38:03.300And so Justice Samor concluded that Section 3 is not self-executing and requires legislation for enforcement.
00:38:12.700And he argued that the lower courts proceeding in Colorado lacked basic discovery, lacked the ability to subpoena documents, lacked the ability to compel witnesses, lacked any time frame to investigate or develop defenses.
00:38:29.540And lacked the opportunity for a fair trial.
00:38:32.180And he pointed out that, in his view, Section 3 cannot be self-executing because it doesn't provide any procedural guidance.
00:38:45.600For example, Section 3 of the 14th Amendment is completely silent on whether a jury has to be impaneled or not.
00:38:52.060Can a judge decide it or does it have to be a jury or a peer as well?
00:39:41.320And so you go back to the very beginning of what you said.
00:39:44.900No one has had the Coney's to charge him because they know they would lose.
00:39:48.840You could not prove the case in court, which is why instead you have partisan judges or a partisan secretary of state just asserting it because they believe it is a political matter.
00:40:00.560Now, on our next podcast, what I want to walk into and go into is there is some history and some Supreme Court history on the 14th Amendment in Section 3 right after the Civil War and Jefferson Davis in particular.
00:40:15.940So I'm going to give a tease for our next podcast.
00:40:19.260I'm going to walk through what happened with Jefferson Davis under under the 14th Amendment Section 3.
00:40:25.680But let's be clear, Jefferson Davis, by any measure, engaged in dramatically different conduct, leading the Confederacy and waging war with the United States for four years is very different from giving a speech telling people to be peaceful.
00:40:41.280And so but there is complicated precedent post-Civil War in the next podcast.
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00:43:49.100Happy New Year from all of us here, and we'll see you back here in a couple of days for basically part two of what's going to unfold here with the Supreme Court.