Trump's Trials - Justices push lawyers on question of Trump's eligibility to run for another term

Episode Date: February 8, 2024

For this episode of Trump's Trials, NPR's Scott Detrow speaks to Chief Legal Affairs Correspondent Nina Totenberg, Washington Desk Senior Editor and Correspondent Ron Elving and UCLA law professor and election law expert Rick Hasen.On Thursday, the Supreme Court heard oral arguments over whether former President Donald Trump is disqualified from running for office on the basis of Section 3 of the 14th amendment. The justices sparred with attorneys from both sides, questioning their justification to remove or keep Trump on the ballot. The justices appeared skeptical of individual states having the power to decide who is able to run for president, at least without congressional action.Topics include:- Trump's legal argument - Colorado's legal argument - Justice's reactions- What's next Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

It's Trump's Trials from NPR. I'm Scott Detrow. This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. A consequential day in American history. On Thursday, the Supreme Court heard oral arguments over whether former President Donald Trump should be barred from running for office because of his actions on January 6th. The justices appeared skeptical of Colorado's argument that Trump is an insurrectionist

and therefore should be removed from the presidential primary ballot. From the line of questioning, many court observers are predicting the justices will side with Trump in this case and he will remain eligible to seek another term. Stay with us. When we come back, we will have reaction and analysis of today's oral arguments. function declines, which may impact changes in energy and strength. Solgar Cellular Nutrition is a holistic collection of cellular nutrients formulated to help fight cellular decline and promote cell health. Learn more at cellularnutrition.solgar.com. These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.

diagnose, treat, cure, or prevent any disease. Arguments went on for more than two hours today. We're going to talk about what we learned. I am joined by NPR Chief Legal Affairs Correspondent Nina Totenberg, Washington Desk Senior Editor and Correspondent Ron Elving. We are also joined by UCLA Law Professor and election law expert Rick Hasson. Nina, I'm going to start with you. What did we learn from the questions the justices asked today, the tone of their questions, the themes they returned to again and again, the way they treated the different lawyers? Well, I think it was pretty clear that the court is skeptical of Colorado's position and sees all kinds of problems beyond Donald Trump and the consequences beyond Donald Trump. And I want to get you to play

something that the Chief Justice said about the consequences if they side with Colorado. Counsel, what do you do with what would seem to me to be plain consequences of your position? If Colorado's position is upheld, surely there will be disqualification proceedings on the other side, and some of those will succeed. Some of them will have different standards of proof. Some of them will have different rules about evidence. Maybe the Senate report won't be accepted in others because it's hearsay. Maybe it's beyond a reasonable doubt, whatever. In very quick order, I would expect, although my predictions have never been correct, I would expect, although my predictions have never been correct, I would expect that a goodly number of states will say, whoever the Democratic candidate is, you're off the ballot.

And others, for the Republican candidate, you're off the ballot. It'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence. So that's Roberts. And Nina, you pointed out that there's a lot to talk about here, but I actually want to ask Ron something about this too, before we get to the case itself. Ron, you go to all of the different legal cases that Trump is facing right now, and I've really been struck by how over and over again Trump's arguments and defenses seems to be perhaps I did this one thing, but penalizing me for doing something out of bounds that I did, such as trying to overturn an election, really opens the door to go after other presidents as well. I mean, that was the crux of the immunity argument.

A president should not face crimes for anything that he does in office because it could be abused. Now, you're hearing it here in this case as well. crimes for anything that he does in office because it could be abused. Now, you're hearing it here in this case as well. Well, if different state officials or state courts ruled that Trump was an insurrectionist here, this could open the door to any candidate being treated the same way. It seems the Pandora's box argument is a good deal stronger in this case than it is in the immunity case. There is very little prospect, it seems, that you're going to see exactly the circumstances that eventuated at the end of Trump's time in office. I'm talking about January 6th,

but much, much more than just January 6th. And if, in fact, we do see exactly that again, well, then perhaps all the arguments against Trump being on the ballot or Trump being immune would obtain against a future president. But the argument that's being made here in this case with regard to taking him off the ballot in Colorado, it seems to me is much more powerful, which is how would we keep other states other than Colorado from coming up with their own standards and saying that's an insurrection or that's an insurrection? Chief Justice Roberts at one point referred to that thing that's going on down the street. That's an insurrection.

So clearly seeing it as potential fodder for absurd cases being brought or frivolous cases being brought and then the suggestion that you would come down to just a handful of states that hadn't disqualified the nominee of the Democratic Party or the Democratic or the nominee of the Republican Party under such circumstances. And that would just leave a handful of states that hadn't done so. And they would be the ones who chose the president. Now, a wag might note that we're kind of down to a handful of states who are choosing the president now. But we certainly don't want to. We certainly don't want to institutionalize that. Yeah. I mean, Nina, you were starting to get to this broader point, though, that it wasn't just Roberts. It wasn't just the conservative justices.

I think Kagan as well was raising this question. Kagan said, look, the president isn't in this list of people who are covered by the Section 3 of the 14th Amendment. The vice president names all these other people, senators, congressmen, and almost everybody in government has held one of those offices, has held a public office. But President Trump is unique in that sense. He's never held any office before being president. And so in that case, he is the exceptional case. He's never held any office. And the court may decide, even though it sounds silly, that that's where it wants to go. It wants to say,

the president is not an officer of the United States because he's not named. I'm really interested in what my colleague, friend, and expert who knows much more than me, Rick Hassan, has to think about this. Yeah, I don't think that the court is going to go down the officer of the United States. Really, it was only Justice Jackson who seemed to really latch onto that language. But I do think that there was, if not unanimity, almost unanimity on the court that it would be bad for a state. You'd have a race to the bottom if one state could choose to disqualify. There's a unique federal interest, national interest when it

comes to the office of the presidency. So what I expect is that we're going to quickly get an opinion from the court that may be unanimous or may be eight to one. I'm not sure where Justice Sotomayor is, but one on a variety of rationales says that this is just not something that a state like Colorado can do for president. And then they avoid the question of whether Trump engaged in insurrection or not. That does kick the can down the road to January 6th, 2025, when maybe a Democratic Congress decides to try to disqualify Trump if he is the winner, apparent winner in the election. You came to that conclusion on you were keeping a live blog throughout the arguments.

Was there one particular moment, Rick, that made you think, OK, this is clearly aligning in a supermajority type ruling here? So the tip-off is what they didn't say. So if they were going to rule in favor of Colorado, one of the things they'd have to determine is whether Donald Trump engaged in insurrection and whether he did that or not is a factual question. There were questions about how much deference they should give to the facts, but there was really no probing of the question of whether Trump engaged in insurrection, which is really necessary for them to conclude if they're going to come out the other way. There really was no appetite for it. Maybe Justice Sotomayor was moving in that direction.

But when you've lost Justice Kagan and Justice Jackson, who made the textualist argument, there just did not seem to be any energy on the court for this. And remember, the court's going to have that immunity emergency petition coming to it on Monday. So, you know, there's room for a grand bargain here where Trump is going to trial on election subversion, but he's not disqualified from the ballot in any state. You know, for me, Scott, the moment that you hear somebody really saying something that everybody has been talking about, as often happens, it was Justice Kagan followed by Justice Barrett. And so Kagan is a liberal member of the court. Barrett is a conservative member of the court. Of course, those are overgeneralizations.

But here's Kagan talking about what this means for the country and what the question is here. But maybe put most boldly, I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it. It sounds awfully national to me.

So whatever means there are to enforce it would suggest that they have to be federal national means. Their own state's law and state procedure. Well, I mean, if we affirmed and we said he was ineligible to be president, yes, maybe some states would say, well, you know, we're going to keep him on the ballot anyway. But I mean, really, it's going to have, as Justice Kagan said, the effect of Colorado deciding. And it's true. I just want to push back a little bit on, well, it's a national thing because this court will decide it. You say that we have to review Colorado's factual record with clear error as the standard of review. So we would be stuck, the first mover state here, Colorado,

we're stuck with that record. And, you know, I don't want to get into whether the record, I mean, maybe the record is great, but what if the record wasn't? I mean, what if it wasn't a full time? So that's Justice Barrett. The second speaker there is Justice Barrett. So you see that there's sort of this coalescing between these two justices. And you heard that, and it became stronger and stronger over time as the argument went on, I think. Rick, I'll go to you. We've been focusing a lot on the deep skepticism that justices across the

spectrum had for Jason Murray representing the voters here for his arguments. What do we make of what Jonathan Mitchell argued before the court? He was the lawyer, high profile Texas lawyer who was representing Trump before the court today. Well, remember that his main argument was this hyper technical one that the president is not an officer of the United States. And therefore, because Trump was only served as president, he never was an officer of the United States, and therefore, because Trump was only served as president, he never was an officer of the United States, he's not subject to Section 3. That argument got almost no traction. I think we went 20 or 25 minutes before we got a question about this. But the questions he got were, you know, not all that hostile. When you contrast

what we heard being brought up against Mitchell compared to what came against Murray, Murray was getting attacked on all sides from the justices across the political spectrum. And so it suggested that, you know, the less Mitchell said, the better he was going to do because his arguments were not necessarily the way the direction the court was going to go. And they had their own set of views as to how they were going to rule in Mitchell's client's favor, Mr. Trump. One other thing I wanted to make sure we contextualized before our coverage here ends, and Nina, Rick, or Ron, and I don't know which one of you wants to hop to this question, but we heard a lot about Griffin over and over and over again. Can somebody explain

what that case was, why it matters? Rick, you take this and be quick. And all I'll say about Griffin is remember, it was actually not a Supreme Court ruling. It was a Court of Appeals ruling back in 150 years ago. So Rick, take it away. Yeah. So Justice Kavanaugh seemed really hung up on this. This was an opinion of a single justice who essentially said, not speaking for the Supreme Court, that essentially said that Congress has to pass some authorizing legislation

before you could have any state disqualify anyone from office. Kavanaugh seemed interested in it. I don't know that they're necessarily going to go with that. They may say for federal offices or for the presidency, you need something like congressional authorization because we need national uniformity. You heard that clip. Justice Barrett does not want to race to the bottom. Chief Justice Roberts said the same thing. So whether Griffin plays a role

or not, I think is really secondary to the bottom line, which is that I expect Donald Trump to be on the ballot. Ron Elving, I want to go to you on the big picture here of the politics. Bush v. Gore, about 25 years ago, really hurt the court's credibility when it weighed in on a presidential election and effectively decided that election. This is a very different case here. Among other things, it's February. The election hasn't happened yet. But you don't just have this case, right? As we've talked about, the Supreme Court's going to issue a ruling here. It's also going to decide whether or not to take up the appeal of whether or not a sitting or former president has blanket broad immunity. We have seen the court's trust levels just plummet in recent years for a variety of reasons. How precarious of a moment is this for

the Supreme Court? Is it ways how to handle all of these Trump legal questions? Peter Robinson Potentially, it could be a turning point for the court if it can fashion the best way out possible. But, you know, really, it's not going to make a radical difference, I don't think, in how people see the court, because right now this court is characterized not only by some questions of ethics and their seriousness about having an ethics code and enforcing it, but also by the Dobbs decision. Really, the abortion issue hovers over this court and will, as of course, the Roe versus Wade decision hovered over a court back in the 1970s and for decades afterwards. But I do think, someone used the phrase grand bargain,

I do think there is a basis on which to think that these nine justices are working up to a pro-Trump decision in this matter, or what would be seen as an anti-Colorado decision at least. And then perhaps something with regard to immunity that would look a little bit more like what the Circuit Court of Appeals has already said about the concept of a president having absolutely unlimited immunity and protection against any liability for any crime that he might commit while he was in office. To look at the positions taken by scholars who have actually weighed in on their views about the ballot question. And there are a lot of liberal scholars who believe that the Trump position is the correct position for all the reasons we've discussed today, that you couldn't have the states having a million different standards for who's on the ballot and that

it would end up in a tit for tat between Democrats and Republicans pushing each other off the ballot. At the same time, there's a great agreement that a president and former president is not immune from criminal prosecution. And I suspect that the court would love to find a way to sort of merge these two ideas to preserve its position as a fair arbiter of what the status quo should be. Whether they can pull that off or not remains to be seen. One more question that I had throughout the arguments today, and Rick Hassan, I'll put this to you. So much talk about the oath taken and whether or not the presidential oath applies. The presidential oath, Rick, is like the most famous oath we're talking about here, and it includes the phrase preserve, protect, and defend the Constitution. Why doesn't that count?

Well, I think it should count, and I thought it was interesting that Mr. Mitchell, who was representing Donald Trump, said it would be really weird to have a rule that says that you're disqualified from serving every office in the land except the president. So even they, if you're an insurrectionist. So even they were not going there. Donald Trump's argument was like a one-day-only ticket. It would apply only to him. I don't think the court wants to go there. Donald Trump's argument was like a one-day only ticket. It would apply only to him. I don't

think the court wants to go there. The court wants to come up with something that protects the federal interest in presidential elections. Nina, any last words from you on what you're going to be looking for coming next, what the timeline you might expect is, anything else? Well, as Rick said, you might expect is? Anything else? Well, as Rick said, the papers, the Donald Trump appeals papers are due at the court on Monday. So the clock will start ticking then. If the justices actually can agree on something relatively easily, we should get something pretty quickly. If it's a struggle to get some sort of consensus on rationales and on whether to hear the immunity case or not hear the immunity case or when to hear the immunity case, then we could be looking at a longer time frame. Or the court will just do this and wait to weigh in on the immunity case. to weigh in on the immunity case.

That was NPR's chief legal affairs correspondent, Nina Totenberg, Washington Desk senior editor and correspondent, Ron Elving, as well as UCLA law professor and election law expert, Rick Hassan. We will be back in your feed Saturday with more on this case and also a look at that appeals court rejection of Trump's immunity argument. Thanks for listening to Trump's Trials from NPR. Keep an eye out for more episodes like this whenever big news happens. And we'll be back later this week with our regular show on Saturday. I'm Scott Detrow. Thank you. When voters talk during an election season, we listen. We ask questions, we follow up, and we bring you along to hear what we learned.

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