Defending Democracy: Trump WILL Win at the Supreme Court-Here's How & Why

Summary

The 47 Morning Update with Ben Ferguson: Defending Democracy - Trump WILL Win at the Supreme Court – Here's How & Why

Release Date: January 8, 2024

Introduction

In the January 8, 2024 episode of The 47 Morning Update with Ben Ferguson, hosted by the popular national radio host and political commentator Ben Ferguson, the focus centers on a pivotal legal battle: Colorado's decision to ban former President Donald Trump from the ballot and its subsequent journey to the Supreme Court. The episode delves deep into the legal intricacies, political implications, and historical precedents that shape this contentious issue.

Colorado's Decision to Ban Trump

The episode opens with a discussion on Colorado's unprecedented move to exclude Donald Trump from the ballot. Speaker A introduces the topic by asking, “Why was Colorado chosen to be the case that would go to the Supreme Court over the other states that had also done the same thing?” [00:01].

Speaker B responds by clarifying the legal pathways, emphasizing that Colorado's decision came from its state Supreme Court with a 4-3 ruling, making it eligible for an appeal to the U.S. Supreme Court. In contrast, Maine's decision, made by the Secretary of State, isn't directly appealable to the Supreme Court [00:30].

Legal Path to the Supreme Court

Speaker B elaborates on the appellate process, explaining the distinction between state and federal court systems. “Colorado was the only option, appeals to the Supreme Court, as a general matter, lie either from state supreme courts or lie from federal courts of appeal” [01:22]. He stresses that the core issue revolves around the interpretation of the 14th Amendment, specifically Section 3, which addresses insurrection and eligibility for public office [02:15].

Analysis of the 14th Amendment and Section 3

A significant portion of the discussion centers on whether Trump's actions constitute an insurrection under the 14th Amendment. Speaker A probes into whether the Supreme Court's argument will focus on Trump's alleged role in an insurrection or on the state's overreach in disqualifying him [02:44]. Speaker B posits that the argument will encompass both aspects, highlighting the legal complexities involved.

Predictions on Supreme Court Decision

Speaker B confidently predicts that the U.S. Supreme Court will reverse Colorado's decision. “I believe the U.S. supreme Court is going to reverse the Colorado Supreme Court. And I think there is a very good chance that the US Supreme Court will do so unanimously” [04:20]. He attributes this confidence to Chief Justice John Roberts' commitment to maintaining the Court's non-partisan image and ensuring unanimous decisions to uphold the institution's integrity [04:57].

Historical Comparisons: Bush v. Gore

Drawing parallels to the landmark Bush v. Gore case, Speaker B shares his personal experience as part of the legal team representing George W. Bush. He highlights the Supreme Court's ability to expedite urgent cases, noting that both the Current Case and Bush v. Gore were addressed swiftly due to their national significance [13:59]. This comparison underscores the gravity with which the Court treats matters impacting the nation's democratic processes.

Arguments Presented by Trump’s Team

Speaker B outlines the key arguments anticipated from Trump's legal team:

1. Political vs. Legal Matter: Trump contends that determining presidential eligibility is a political issue best resolved by Congress, not the judiciary [25:49].

2. Scope of Section 3: He argues that Section 3 of the 14th Amendment does not apply to the office of the President, differentiating it from other civil officers [26:02].

3. Presidential Oath: Trump claims that his presidential oath differs from that of other officers, asserting a distinct role that exempts him from Section 3's restrictions [25:53].

Additionally, Trump’s team argues that the Constitution’s Section 3 does not provide adequate procedural guidance, such as standards of evidence or due process, to justify his exclusion from the ballot without explicit legislative action [35:08].

Potential Outcomes and Their Impact

Speaker B anticipates that affirming Colorado's decision would lead to Trump's removal from the ballot nationwide, a move he describes as profoundly anti-democratic. He emphasizes that such a decision would set a dangerous precedent, allowing any political party to disqualify candidates based on similar grounds, thus undermining the electoral process [05:53].

Conversely, if the Supreme Court reverses Colorado's ruling, Trump remains on the ballot, reinforcing the integrity of the democratic process by ensuring that voters have the final say without judicial overreach [06:04].

Self-Executing Nature of Section 3

A critical legal debate highlighted in the episode concerns whether Section 3 of the 14th Amendment is self-executing. Speaker B explains that Justice Carlos Samore of the Colorado Supreme Court believes it is not, arguing that the section lacks procedural details necessary for its enforcement [36:14]. However, Speaker B counters this by pointing out existing federal statutes, such as 18 USC Section 2383, which criminalize insurrection and bar individuals from holding office upon conviction [17:56].

Conclusion

Ben Ferguson and Speaker B provide a comprehensive analysis of the ongoing legal battle surrounding Donald Trump's eligibility for the ballot. With the Supreme Court scheduled to hear oral arguments on February 8th and a decision expected by early March, the episode underscores the high stakes involved in this case. The discussion not only sheds light on the legal mechanisms at play but also reflects broader concerns about the balance of power, the integrity of democratic institutions, and the role of the judiciary in shaping political landscapes.

As the nation awaits the Supreme Court's decision, The 47 Morning Update promises to continue monitoring and dissecting the developments, providing listeners with informed perspectives and in-depth analysis.

Note: This summary excludes advertisements and non-content sections from the original podcast transcript.

Transcript

[A]

Senator, Colorado banned Donald Trump from the ballot. A bunch of other states decided they want to do the exact same thing, and now this is all going to the Supreme Court. We thought it was appropriate to spend some serious time on the podcast today talking about this issue. Why was Colorado chosen to be the case that would go the Supreme Court over the other states that had also done the same thing? Because Trump's team and they had options here. Why was it Colorado and what does this mean moving forward?

[B]

Well, Colorado was really the only option. We have two decisions. We have Colorado and Maine. Colorado was a decision from the state Supreme Court. It was a decision that was 4, 3. And a decision from a state supreme Court can be appealed to the US Supreme Court. What happened in Maine was it was a decision from the Secretary of State. So it was an individual, it was not a court that decided. It was the Secretary of State. Secretary of State is not a lawyer. She is not an elected official by the people. She is elected by the state legislature in Maine. She made a determination. The next step in Maine is for that to be challenged in Maine judicial court in state court. So you can't appeal from the Maine Secretary of state to the U.S. supreme.

[A]

Court because the only option was, in.

[B]

Essence, Colorado, Colorado was the only option, appeals to the Supreme Court, as a general matter, lie either from state supreme courts or lie from federal courts of appeal. And so the way the courts work, you have a federal system and you have a state system. Typically, both are set up with trial courts, intermediate appellate courts, and then the Supreme Court. And so in the state, you have typically a trial court, an intermediate appellate court, the Supreme Court. And from the state supreme Court, you can appeal to the US Supreme Court, although you can only appeal a question of federal law. So Colorado can determine Colorado state law. The Supreme Court and the US Supreme Court doesn't determine Colorado state law. But in this instance, the question is overwhelmingly, it is entirely one of federal law, namely, what the 14th Amendment to the Constitution means.

[A]

So the Supreme Court, to be clear, and this is where it's gotten complicated, when you go before the Supreme Court in this case with Colorado, the argument that's gonna be made, is it gonna be about whether there was insurrection and he was in charge of that insurrection, therefore he should be disqualified with the 14th amendment. Or is this about a state overstepping and saying, we believe that he was a guy that was involved in insurrection, so therefore we can take him off the ballot? Or is it really a combination of both?

[B]

So it'll be both. And let me break down look on verdict. When the Colorado decision came down, when the Maine decision came down, we said on this podcast, I predicted the Supreme Court would do exactly what it's done, that the Supreme Court would take the case and that they would take it quickly. That is what has happened. So they've taken it now. They've set the oral argument for February 8th. So that is exceptionally fast. Generally, when the Supreme Court takes a case, you have months to file briefs, and the oral argument is six months down the road. In this instance, the oral argument is a month from now. The parties will file their briefs in the next couple of weeks. So they are furiously writing their briefs right now.

[A]

And when you say the parties, to be clear, that is the Colorado attorney general and her staff is going to be filing on their side. And then who's going to be filing this? Is it Trump's personal legal team or is it the campaign? How does that work?

[B]

So the Colorado Republican Party has filed an appeal. Trump will certainly file, will participate in it. You will have other Meeki friends of the court. And what I want to do for this podcast is two things. One, I'll tell you what I think the court's going to do and why. But two, then I want to just explain the details of the legal arguments that are playing out, because this is complicated. It's hard to understand. And it's important to understand. I believe the U.S. supreme Court is going to reverse the Colorado Supreme Court. And I think there is a very good chance that the US Supreme Court will do so unanimously.

[A]

Really?

[B]

I think if I were to put the odds of a unanimous decision, I'd say the odds of a unanimous decision are 60 to 70%.

[A]

You say that and there's gonna be people that listen, are gonna be shocked. I'm one of them. And here's why. I feel like I've lost some faith in the Supreme Court, specifically over Roe v. Wade and the leaking of that decision, and also the fact that clearly there had to be people that knew who leaked it. And we still haven't found out who the leaker is, there's no indication we ever are gonna figure out who the leaker is, which is, I think, also shocking. So when you come back and you say 9O tell me why you have that much faith.

[B]

So I think a number of things. I think, number one, the Chief justice, John Roberts is gonna be deeply invested in wanting this to be unanimous, in not having the Supreme Court appear partisan. Every justice is going to be aware this is a decision that's going to be Watched by the country and watched by the world. And every justice is aware of not wanting the Court to appear like a political or partisan body. John Roberts, whom I know very, very well, as you know, I clerk for Chief Justice William Rehnquist. John Roberts clerked for Chief Justice Rehnquist as well. He's been a friend of mine for 30 years. He cares deeply about the institutional legacy of the court, and he is gonna be deeply motivated. A unanimous decision, I think he will believe, and I think all of the justices will believe, is the best for the court and the best for the country.

[A]

Is that because of precedent moving forward that 10 years, 20 years from now, we could see this happen again, where a political party decides we're just gonna try to throw a guy off the ballot, it could be a Democrat next time.

[B]

Look, the precedent on this is terrible. And what the Colorado Supreme Court did was lawless. And we'll walk through that in a minute. But here's what I think will happen, by the way, to give you a sense of the scope of it. If the U.S. supreme Court affirmed the Colorado Supreme Court decision, Donald Trump would be struck from the ballot. And if that determination was made, it's not binding on the other states, but the other states, within very short order, Trump would be removed from the ballot in all 50 states. So if the Supreme Court decides all.

[A]

50, so not just Democrat states, where there's Democrat Attorney general there, you're saying all over the country, the only ground.

[B]

On which the US Supreme Court could affirm the Colorado Supreme Court is to conclude that Trump is barred from running for office because of the 14th Amendment, Section 3 of the Constitution. If the Supreme Court concludes that every state will remove him from the ballot and you will have courts order every state to do that. So that would be a nationwide decision. Now, it would also be a decision that would be so profoundly anti democratic, and I think it would rip this country apart. And the court doesn't want to do that. You know, there's a rich irony. Democrats, what they tell you, what they accuse their opponents of doing, almost inevitably is what in fact they are doing. Every Democrat right now is beating their chest saying, we must save democracy. Joe Biden just gave a ludicrously self righteous speech saying we must save democracy, by which he means elect Democrats. And nothing saves democracy or defends democracy like throwing your opponent off the ballot. So to stop the voters from voting for him, understand why the Democrats are doing this? They're afraid the voters will vote for Donald Trump if he's on the ballot and so they're trying to prevent democracy. I don't think the Supreme Court is gonna have any interest in playing a part in preventing democracy, in stifling the right of the voters to decide. And here's how I actually think it will play out. I think John Roberts in particular is going to go to Elena Kagan. Elena Kagan is the smartest of the liberal justices. She was the dean of the Harvard Law School. She was the United States Solicitor General. She is a very, very smart, talented lawyer. And I think Roberts is going to try very hard to make the personal case to each of the justices that the court needs to be united. By the way, that's not unprecedented. If you look at Brown vs. Board of Education, which was the case in 1954 that struck down segregated schools, that decision was unanimous. Earl Warren was the Chief Justice. He understood that that decision was a big, big deal. Segregated schools had been allowed under a decision called Plessy vs Ferguson. A terrible decision. And Brown overruled Plessy. And Earl Warren thought it was critically important that the court speak unanimously, that there'd be no division on a question that would impact every American. I think this is of a similar magnitude, and given the political context, I think every justice will feel an urge to have the court not appear to be a political branch.

[A]

Now, you mentioned, by the way, in a previous verdict that these, the justices don't necessarily talk a lot to each other, almost never. They operate as almost like independent law firms as you described it. This seems different in this scenario where you're saying there will be almost in essence like a lobbying for the sanctity of the court, in essence, and for the country, like, hey, we need to all get together on this one. This is different. And you believe that's probably how it's gonna play out. And that doesn't happen very often. Correct?

[B]

It happens very, very rarely. In this instance, I think it was a no brainer. The court would take it. It didn't surprise me at all. And by the way, it was gonna be argued on February 8. We will get a decision. I think by the middle of February. We'll have a decision within a week or two or three.

[A]

Who decides at the Supreme Court to take a case quickly and walk us just through that. Does that have to be a lot of justices?

[B]

How does that work? So what was filed is what's called a petition for writ of certioraries. That is a request for the court to hear an appeal. The Supreme Court is unusual in that many courts of appeals. Most courts of Appeals, you have an appeal by right. In other words, if you file an appeal, the court has to take it. If you have a case in federal district court, you're convicted of a crime or you have a civil lawsuit, you sue me and you lose, you can file an appeal as of right. And if you're in federal district court here, you would appeal to the fifth circuit court of appeals and the fifth circuit will take that appeal. It has no choice. The supreme court has what's called a discretionary jurisdiction, which means it chooses which cases to take. In a typical year, there are about 8,000.

[A]

Wow.

[B]

Cert petitions is what they're called. Petitions for certior or everyone calls them cert petitions. They're about 8,000. The court typically takes about 80. So it takes about 1% of the appeals. It says yes. It takes four justices to vote to grant cert. I believe this case was a no brainer. I think all nine of them agreed we needed to take it. I 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 under the constitution. It is difficult to imagine a more consequential question and a question that demands the supreme court get it. Look, I don't think the court was eager to get into this issue at all. If Colorado hadn't decided this, they wouldn't have touched it. The justices are not looking to opine on this. But once Colorado ruled, they had no choice and they had no choice but to do it quickly.

[A]

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[B]

Yeah. So Bush versus Gore. I was part of the legal team representing George W. Bush in the year 2000. That entire legal proceeding took 36 days. And I was down in Florida in Tallahassee as a baby lawyer. I was 29 years old, but part of the legal team. One of the most junior members of the legal team, but part of the legal team litigating in that particular case. We went to the U.S. supreme Court twice, and in those 36 days, the Supreme Court heard two appeals. Those two appeals were briefed, they heard oral arguments, and they issued decisions. And both of those played out within the 36 days. So the court can move exceptionally quickly if there is an urgency to do so. It was interesting in Bush versus Gore, there was a divide of opinion among the lawyers representing Bush as to whether the court would take the case.

[A]

Really.

[B]

And the divide, by and large, was a divide between those who had clerked at the court and those who had not clerked at the court. Almost without exception, those of us who had been law clerks at the Supreme Court believed the court would take the case. That 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. I think that's exactly what they feel here. Now, 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, then the court is not going to rule. I believe that there was not an insurrection. Like that's one ground you could reverse is say there was not an insurrection. Why is that going to be the case? Look, I don't think there was an insurrection as a matter of law, and we'll talk about that in a second. But I don't think the court will rule that. Why? Because I don't think Kagan or Sotomayor or Ketanji Brown Jackson would rule there was not an insurrection. So if it's going to be unanimous, they're going to have to find a way to resolve it that is narrow, but that reverses it and brings everyone together. And so here's the basis. I think they will resolve it. I think they will resolve whether or not there was an insurrection. I'm willing to bet right now there will be a sentence in the opinion that says we express no opinion on whether or not an insurrection occurred on January 6th.

[A]

So they're going to say that's not what we're here to do. That's not what we're deciding. We're not part of that debate.

[B]

Right. I think what they will say instead is, however, the determination of that matter cannot be made without evidence, without due process, without a judicial proceeding, and in particular, the ground that I think the court will go to. So there's a federal statute. So here's what 18 USC Section 2383 says. It's entitled rebellion or insurrection. Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than 10 years or both, and shall be incapable of holding any office under the United States. Now, notice the penalty. Incapable of holding any office. This is a statute that is codifying the Section 3 of the 14th Amendment, and it is an insurrection. Now, interestingly enough, Donald Trump, it seems, has been indicted all over the place by a bunch of very partisan, overzealous prosecutors who hate the man. And you know what he hasn't been indicted for anywhere? Insurrection. Jack Smith, who is Javert to Trump as Jean Valjean. Jack Smith hates Trump and wants to get him, no matter what, he wants.

[A]

To put in prison for, like, a life sentence.

[B]

And Jack Smith is in D.C. with a very liberal judge. He's got a D.C. jury pool that is 94% Democrat. He's got the most favorable environment in the world. And you know what he hasn't done? Indicted Trump for insurrection. And the only reason he hasn't, I'm saying.

[A]

So the question is, why every other one not?

[B]

Because there's no remote evidence that would prove that Trump had engaged in insurrection. Donald Trump sent some tweets and stood up and gave a speech in which he told people, be peaceable, be peaceful. You cannot prove as a matter of law that telling people to be peaceful is engaged in insurrection. So understand, when Democrats go on TV and say it's an insurrection, it's an insurrection. When reporters go on TV and say that, they mean that as political rhetoric. Insurrection is a legal term and there's a reason no one has charged him with it, because you couldn't pass the laugh test. So 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. Jack Smith brings an indictment, they get a conviction, that conviction is upheld on appeal.

[A]

Then look, then that's a different argument. Right? He's been convicted of it.

[B]

Then it's a slam dunk. If Trump were convicted of insurrection, or if anyone were convicted of insurrection, they would be barred from being on the ballot.

[A]

When you look at Jack Smith, and I gotta go back to this, because you talk about these guys and all of the different things, they've gone after Trump and to remind people that the entire country, not one of these overzealous prosecutors has gone after Trump for insurrection. Do you think Jack Smith probably sat in a room with a bunch of Democrats and said, absolutely. Is there any way we could get him? Is it possible? If we were gonna try the case, how would we try the case? And 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, and the fact that he also said he offered up the National Guard, which Democrats Pelosi said no to. So if you're trying to have an insurrection, would you try to do that as well?

[B]

And Understand, look, Section 3 of the 14th Amendment was passed in the wake of the Civil War. It was designed to stop people who had fought for the Confederacy from serving in Congress, from serving in elected office, from serving in government. If you were so understand, when they were writing insurrection, they were thinking about the Civil War now. And we could in a minute go into. And we may even do an entire podcast, a separate podcast, on some of the judicial precedent on post Civil War. But 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, a potential response was, well, post Civil War, the Civil War officers who were banned, they were not always barred, prosecuted for insurrection. That's true. But I will say this. And it varied, but there was zero dispute that an insurrection had occurred. The predicate. You want to know what an insurrection is? Well, the Civil War lasted four years and 600,000Americans were killed. That's an insurrection.

[A]

Yeah.

[B]

Like, 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. That's what they were talking about when they said insurrection, not a riot, where some individuals committed individual acts of violence for which they were prosecuted and are serving jail terms. That is. But like the analogy is to the Civil War, and it's why no prosecutor can bring this case. All right, let me walk through some of the arguments that are at play. So here's what Trump argues to the Supreme Court in his cert petition. First, 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. And actually, in making this argument, he mentions President Obama and disputes about whether he was eligible to be president. He mentions Senator McCain when he ran for president, disputes about whether he was eligible. And he mentions me, actually. And there were disputes, there were challenges when I was running for president. There were legal challenges that I was not a natural born citizen. I was in fact a natural born citizen, because what the Constitution requires is that you be natural born. I was a US Citizen even though I was born in Canada. My mother was a US Citizen at the time of my birth. And so I was a citizen by birth. The process of being born is what made me an American citizen. I was never naturalized, but there were a bunch of lawsuits that were filed against me when I ran. We defeated them all, and the courts threw them out and we defeated them all. And what Trump said is, look, if there's a dispute, that's ultimately a question for Congress to decide, not the court. So that's argument number one. That's a real argument. A second argument is that section 3 does not reply to the office of the President. This is a real argument, but I'd be surprised if the Supreme Court agrees with this one. But let me give you what his basis is. Trump argues it based on three different grounds that if you look at the phrase officer of the United States, it appears in three constitutional provisions other than Section 3 of the 14th Amendment. It appears in the Appointments Clause, which requires the President to appoint ambassadors, public ministers and consuls, justices of the Supreme Court and all other officers of the United States. And he points out, well, the President obviously can't appoint himself, so officers are something different than the President. Likewise, the Commission's clause requires the President to commission all the officers of the United States. Again, the President doesn't commission himself. So the argument is officers of the United States are different from the President, which is a constitutional creation. And then also the impeachment clause. The clause that verdict started with, the impeachment clause says, quote, the President, vice President, and all civil officers of the United States shall be removed from office on impeachment for and Conviction of treason, bribery, other high crimes and misdemeanors. And 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. So that's the argument as a textual matter. It's not a crazy argument, but I would be surprised if that persuades the court. The 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 in particular. Section three bars from office. Those who have taken an oath to, quote, support the Constitution, and 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. It is an oath to, quote, preserve, protect, and defend the Constitution. I'm not terribly persuaded by that argument. It is technically right that the word support is not there, but I.

[A]

That would be one of the weaker arguments that they would be making of their options.

[B]

Yeah, I would be surprised if the court grounded it on supports different from preserve, protect, and defend.

[A]

By the way, when you go in there, as you're laying out these arguments from his team in the oral arguments, would you make all of these, or do you choose the one you want to make that you think is the one that is that they're willing to probably side with the most? Do you pick your best or. Or do you make all of these saying, here are the reasons why we think this is wrong, and these are the different options? How does that work in the oral arguments?

[B]

So it varies strategically. Typically, 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. The briefs are written documents. They are typically in the U.S. supreme Court of merits. Brief is typically 50 pages long. And it's a booklet. It's a booklet that is, oh, about three, four the size of a sheet of notebook paper. And so it's a bound little booklet, 50 pages long. And in your written briefs, I would expect them to make all of these arguments in oral argument. A good oral advocate is going to prioritize.

[A]

Now, is that the same for people that are on the Supreme Court? How it works? Those books that you're talking about, is that the same book that you have for every justice, or can you taper.

[B]

Them to people differently? You file each side files. The petitioner will file an opening brief that is 50 pages. The respondent will file a response brief that is 50 pages, and then the petitioner gets to file a reply so there will be three briefs filed by the parties, two by the petitioner, one by the respondent, and then amici. Amici is Latin for amicus curae, which friend of the court. And there will be other parties that are amicing that file briefs urging the court to do something. But an oral argument, a good oral advocate will prioritize the best arguments. And 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. So when I argued nine cases at the Court, what I very much tried to do is watch and read the justices. And if there was an argument that I was making, I would have thought through what are my best arguments. And 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. But 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, a good oral advocate will pivot based on where the justices are and read the justices. And 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. So 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.

[A]

When you say advocate, what does that mean, a lawyer?

[B]

He argued in front of the Supreme Court.

[A]

So 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 arguments on your behalf. That's your definition of an advocate.

[B]

So John Roberts was. He was the Deputy Solicitor General, the principal deputy Solicitor General under George Herbert walker bush. So Bush 41, the first bush, he was Ken Starr's deputy. So Ken was the Solicitor General. John Roberts was the deputy Solicitor general, principal deputy. And from there, he went to Hogan and Hartson, which is a D.C. law firm, and he led their Supreme Court practice. And in Bush versus Gore, John was part of our legal team. I recruited John. I called John on the phone from Tallahassee and said, john, we need you down here. And he flew down and joined our legal team. And so Bush versus Gore, I litigated it alongside John, worked on the briefs with him. Ted Olson did the oral arguments, but John was part of the mooting team that was asking Ted the questions and preparing Ted for the arguments. When 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. Who's the best Supreme Court advocate in the country? And 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.

[A]

Wow.

[B]

And I agree with that. I've seen John argue multiple cases and I think he was hands down like he was just when I argued cases, I tried to emulate John Roberts argument style because he was so good. And 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 as chief, and I'll tell you what I did when I was arguing with Roberts as chief is I'm looking at the best Supreme Court advocate alive who happens to be sitting in the center seat. And 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. Back when it was Kennedy and O'Connor who were the swing justices, John Roberts was excellent at it. So 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. And so I would pivot very much. And my advice for Trump's lawyer is pay really close attention to what Roberts is saying. Cuz he's not just asking for himself, he's asking on the theory he thinks is most likely to unify the court.

[A]

And get you to that nine, zero unanimous decision.

[B]

Yeah.

[A]

How long are they gonna have to argue this? I mean, when you talk about oral arguments, is it hours? Is it 90 minutes? What are we talking about?

[B]

So normally an argument is an hour. So normally each side has 30 minutes. They can extend it. They might extend it in this instance, I don't know. But normally an argument is an hour. And the bulk of the argument, by the way, is questioning from the justices. So you get up and the justices are asking you questions and that. It's a back and forth, it's not a monologue.

[A]

Is there even an opening statement?

[B]

There is, there didn't used to be. So 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, and every argument begins with that. And you would sometimes get less than a sentence into your argument and a Justice would jump in and pepper you with questions. And what made it invigorating is you'd have a question here, question here, question here. And it was just nonstop. And you had to be quick and fast and anticipate justices who disagreed with your position. They're trying to ask you questions to expose the weakness of your case, and you had to anticipate it. They have post Covid. They regimented it now, and I really don't like how they do it now, but they now have a period of questioning from each justice. And so it's a little. It's not the wild free fall.

[A]

It's almost like Congress, or you have five minutes, or you have three minutes, and then you go in this order. Whereas before, it could be a conservative justice ask you a question, followed up by a liberal justice ask you a question, followed up by another justice asking you a question. It was controlled chaos.

[B]

It was, yes, but it is more regimented now. But 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. All right, let me give the rest of Trump's arguments. Fourth 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. Now, I think that's absolutely correct. I think it's ludicrous to say that Trump engaged in an insurrection based on the facts. I also do not believe the Supreme Court will conclude that, because you can't get nine justices for that. And I think they will want unanimity. And 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, but we might not. And by the way, look, I said that there's a 60 to 70% chance of it being unanimous. That means there's a 30 to 40% chance that. That the liberal justices just hate Trump so much they can't bring themselves to do it.

[A]

And what would that decision look like? I mean, would it be one or two that say, hey, just for the principal, and said, nine, zero, we're going seven, two here, or even go six, three.

[B]

Look, six, three would be heartbreaking. It would do real damage for the country, to the court and to the country, if 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.

[A]

It shows how Partisan.

[B]

I really hope it's not. So. 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. In other words, the courts can't intervene in that. The sixth argument is that Section three cannot be used to deny a candidate access to the ballot. It can only be used instead to prevent someone from holding office. So all of those are arguments, as I said. And you know, and it's worse, by the way, the argument that I think will. Will fly is the argument that it was not adequately determined that Trump had participated in an insurrection. Not that there wasn't an insurrection, but that the means of ascertaining that was.

[A]

That goes back to Jack Smith and what you're talking about. He was never charged, much less convicted, and it didn't work its way through the court system. And so if you believe that Donald Trump, in fact, was a part of an insurrection, then charge him with it, get him convicted of it, then you have that different argument. Goes back to what you were saying at the very beginning.

[B]

Yes, and I will say, look, one of the questions that will be front and center litigated is whether Section three is self executing. Self executing means a provision of the Constitution that has force of law, that doesn't need Congress to pass legislation to enforce it, and that will be actively disputed. And in the Colorado Supreme Court, one of the justices, Justice Carlos Samore, dissented on this point. And what he said is that the majority opinion of Colorado stripped President Trump of due process, of the due process of law. And he says Section 3 didn't specify the procedures that have to be followed to be determined whether someone is engaged in insurrection. All the Democrats, just absurd. It's insurrection. It's insurrection. Yeah, but that hasn't been determined as a legal matter. And so Justice Samore concluded the section 3 is not self executing and requires legislation for enforcement. And he argued that the lower court's proceeding in Colorado lacked basic discovery, lacked the ability to subpoena documents, lacked the ability to compel witnesses, lacked any timeframe to investigate or develop defenses, and lacked the opportunity for a fair trial. And he pointed out that in his view, section 3 cannot be self executing because. Because it doesn't provide any procedural guidance. For example, Section 3 of the 14th Amendment is completely silent on whether a jury has to be impaneled or not. Can a judge decide it, or does it have to be a jury or peers? Well, Section three doesn't say it. What's the burden of proof? Is it beyond a Reasonable doubt? Is it clear and convincing evidence? Is it simply a preponderance of the evidence? Those are very different burdens of proof. Constitution is silenced on that. What's the standard of review? What's the standard of discovery? What's the standard of evidence? Is it a civil determination or criminal determination? None of that is there. And so what he argues is that Congress could pass legislation to adjudicate that. I'm not entirely persuaded on that. What I would say is Congress has passed legislation when it set up a criminal statute for insurrection, that there is a mechanism and it is a criminal trial.

[A]

And charge him.

[B]

And charge him.

[A]

And so you go back to the very beginning of what you said. No one has had the Coneys to charge him because they know they would lose.

[B]

You 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. Now, 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 and Section 3, right after the Civil War and Jefferson Davis in particular. So I'm going to give a tease. For our next podcast, I'm going to walk through what happened with Jefferson Davis under the 14th Amendment, Section 3. But 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. But there is complicated precedent post Civil War. In the next podcast, we'll dive into that.

[A]

It's gonna be very fun. This is why I love doing this show. I also will get your political predictions. I do want to end with one last thing, just so people have that timeline you mentioned earlier. Supreme Court's going to hear this. When and when do you think we'll have a decision from the Supreme Court?

[B]

February 8th is when they hear the oral argument. I think we will get a decision quickly. I think it's possible it could be within days. I think it will be at the very latest by March 5, which is when the Colorado primary is. And my guess is it'll be a week or two. That's just. It'll be as quick as they could write the opinions, but I think they will feel an urge to move quickly.

[A]

It's gonna be incredible. That's phenomenal. We're gonna cover it all. That's what we do here. Quickly. Let me just say this. We're in a new year, and you probably Have a New Year's resolution. And if you are a guy, I've got a resolution for you that you're gonna love. That is getting rid of your weakness and complacency by boosting your testosterone levels up to 20% over 90 days. Now look, there is a massive problem with low T. Historically, right now it's off a cliff. Not just in this country, but all over the world. It is an all time low. Thankfully, the patriots at Chalk are helping real American men just like you take back your right to proudly maximize your masculinity by boosting, as I said a moment ago, your testosterone levels up to 20% over 90 days. Now, I've been taking the male vitality stack from chalk and I've been doing it for months. It works. I'm not going to stop taking it because it works. So if you've got a New Year's resolution, that is, hey, I want to feel better. I want to get in better shape. Well, then start with boosting your testosterone levels. Get rid of that weakness and complacency and get you back your strength of vitality. It really helps when it comes to working out, my friends, you're going to love it. It's manufactured right here in the US of A. Chalk's natural herbal supplements are clinically proven to have game changing effects. And I can tell you personally on your energy, on your focus, on your mood. So check out chalk choq.com and if you use a promo code BEN, you're gonna get 35 off your chalk subscription for life. That's choq.com choq.com use a promo code BEN. 35 off chalk subscription will show up monthly for you so you don't have to worry about running out choq.com don't forget to hit that subscribe, follow or auto download button. It's a new year and we thank you guys for spending time with us. Make sure you share this podcast with your family and friends. We obviously did this one on video for many of you may be listening. Audio only. You can grab it on YouTube, you can grab it on X, you can grab it on Facebook. We stream it, all of those platforms so you can share this on your social media. Happy 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. We'll see you then.