Glenn Kershner (3:27)

Yeah, Ben. I mean, it wasn't even an opinion you were offering. You were quoting, right, from the Supreme Court majority opinion, the 54. It wasn't really 90 on the question that we are discussing, namely, does Congress have to legislate in order to implement the disqualification clause? So it's my view that the Supreme Court got it wrong and uninformed. Why do I say wrong and uninformed? Because there's a bedrock principle in particularly appellate law. I argued criminal appeals in front of military appellate courts, in front of federal appellate courts, and in front of state and local appellate courts. There's a bedrock principle. You only saw the legal wood in front of you. You decide the issue that has been briefed by the parties, that has been argued in oral argument, and you don't begin to ruminate about things that the parties, the people who have the interest in the litigation, didn't have a chance to brief, to argue, to think about. And yet the Supreme Court said, first sawing the legal wood in front of them, they said, we don't think the state of Colorado or any state, even after adjudicating Donald Trump an insurrectionist, we don't think that means a state has the authority to. To take. To leave that person's name off a presidential primary ballot. And I don't know, maybe we part ways here, Ben, but I actually don't quibble with that. Why? Because Section 3 of the 14th Amendment doesn't say if you take an oath of allegiance to the Constitution and thereafter engage in insurrection, your name may not appear on a state primary ballot. That's not what it says. It says, you shall not hold office. You are disqualified. And the only way the disqualification, the disability, can be removed is if Congress votes two thirds in both houses to remove the disability. That's what it says. I mean, look, I went to public schools in Jersey, but I have enough reading comprehension to understand what it says and what it doesn't say. That's where the Supreme Court should have stopped, but instead they started ruminating. You know, we often refer to Supreme Court precedent as the law of the land. You know, this really feels more like the dicta of the land. And as I know your viewers know, dicta is like judicial ruminating. And you know, a thought experiment and answering questions that were not necessary to resolve the case and even more importantly, had not been briefed and argued by the party. So these are uninformed opinions and rulings by the Supreme Court, but there's no getting around what they said, right? Well, let me back up. We have been trying to get around what they said, but I haven't seen a compelling argument for how we get around the fact that those five justices said no. Our interpretation of the Constitution means Congress has to legislate implementing legislation to give effect to what is otherwise the plain language of Section 3's disqualification clause. Again, I don't agree with it. It doesn't make any sense. It wasn't litigated. It's not an informed opinion or ruling. But it's right there in the Supreme Court case of Trump versus Anderson. Now, there have been lots of creative arguments about how maybe there is a chance to get around what five Supreme Court justices said is required, but I haven't heard one that will yet win the day. I mean, we can fall back to the discussion of whether some of these, you know, magic bullets or escape hatches should be tried. What is the wisdom of trying them? For example, having congressmen object to the electoral votes for Donald Trump because he is an adjudicated insurrectionist. But we both know that would contradict what the Supreme Court said can be used as a basis to disqualify someone. But if they do it, does it bubble back up to the Supreme Court? Do we try to force the Supreme Court to revisit its ruling? Slash dicta? I've heard it argued as both things. I don't know. These are things we can discuss. But, you know, if we take a step back, Ben, it is so. This is such a bitter pill for folks like us who are rule of law people and we are Constitution allegiant people. I took the oath of office multiple times as an army officer, as an Army Judge Advocate General, and I also took it when I left the army and became a federal prosecutor at the Department of Justice. I take my obligation to the Constitution deadly seriously. I'm retired from DOJ now, but I feel like I still am loyal to the Constitution all day, every day, in the analysis that that I do. So I'll tell you, if I'm a member of Congress and I read Section 3 of the 14th Amendment and then I am asked to whether I object to Donald Trump, an adjudicated insurrectionist, being sworn in, being our next president, boy, there is a conflict there in my loyalties Am I loyal to the ruling, slash, dictate in the Supreme Court? Do I remain loyal to my oath and the Constitution and object to an insurrectionist being installed as president? You know, all of this, Ben, I think, for me, highlights why the Supreme Court should not have reached the question of the need for legislation to implement the disqualification. Because had the parties had an opportunity to brief and argue it, you know what they might have said, they might have taken the position. Well, you know what, Justices? There was an impeachment hearing for Donald Trump's incitement of insurrection. That was the sole article of impeachment. And the House of Representatives voted by a significant majority, 232 to 197, that, yes, Donald Trump should, should be declared someone who incited an insurrection. And they forwarded that article of impeachment to the Senate for a removal trial. And then a healthy bipartisan majority of the senators voted him guilty. That's a layman's term that I'm using in this setting. They voted that, yes, indeed, he did engage in incitement of insurrection. Of course, as we all know, they couldn't get to the Two thirds, the 67 senators needed. Why couldn't the parties be given an opportunity to go in and argue to the Supreme Court? Ladies and gentlemen, Congress voted that he incited insurrection, both houses. No, not by two thirds. That's to remove the disability once you have been deemed to have engaged in insurrection. But all of this, Ben, is sort of a thought experiment, right? This is an academic discussion because the Supreme Court said you need legislation, and I so strongly disagree with that. It feels more like dicta because it wasn't briefed and it wasn't argued and it wasn't necessary to resolve the issue that was presented to the Supreme Court in Trump versus Anderson. I'm sorry for running on for so long.

Ben (11:29)

No, and look, what I think is so important, because thought experiments can actually lead to action, but I think what's important, and all I've been trying to do is basically say, look, everyone, let me just explain to you what the Supreme Court ruled, what the five justices ruled, why there was such a vociferous protest by three other justices who were appointed by Obama and Biden to the overreach by the Supreme Court. Once we understand that that is what the ruling is and that is undisputed, then we get to the next step of how can we solve for that and what's the solution? Let me just pause there and just. Glenn, just on that piece, you agree with what I'm Saying, though, right there. Right. Like, we have to at least understand what it says and then let's solve for it and then, or can we solve for the thought experiment and then we go into other issues. Let me, I'll pause there.

Glenn Kershner (12:33)

Yeah. So sadly, I agree with the proposition that five justices decided an issue that was not presented to them and that they had no right to decide, but they decided at five of them and they announced congressional legislation is necessary. I couldn't disagree with that more strongly, but it is what they said.

Ben (12:56)

So, so then we go to these other, these propositions out there. I saw one in the Hill that says Congress has the power to block Trump from taking office, but lawmakers must act now. And what they basically suggest here is that ethical dilemma you described, which is that Democrats ignore what the Supreme Court majority ruling is object on January 6th. And then under the electoral count, though that would require a majority of Congress. The Republicans would have to come in and basically be, hey, Democrats, we're joining with you. So you would need MAGA Mike and the Republicans to lock hands with Democrats. And so while we go through these iterations of the thought experiment, Glenn, it comes for me when I hear a proposition like that, I may go, huh, that's novel. That's aggressive. But I go, at the end of the day, MAGA Mike Johnson and Republicans in the Senate and Republicans in the House are not going to go along with that. So I go, aren't you just going to hand Donald Trump a win that he's going to go post about and say, look, they tried to stop me, I won and now I have an extra mandate? Isn't he just going to, isn't that going to, like, like we have to think ahead. Isn't that going to backfire? And now he's going to declare an additional mandate and another victory and it's sure to lose simply because of the numbers in the House. So that's not an effective one, in my opinion. There's no lawyer who can file this lawsuit because if there was, I know you're aggressive as hell. There's a lot of aggressive lawyers. If lawyers thought they could file this and not lose their bar license, they'd probably file it. So I just go through the reps here and I go, you know what? The time needs to be dedicated to the Cabinet picks, controlling what I can control, making sure the Supreme Court composition changes, educating people on these issues. And so it's, you say, a tough pill to swallow. It's a pill of nails and chalk and fricking poison. For me to swallow it. But Glenn, I just feel I go through the reps and I'm like, I don't know what else to say. Just being blunt and honest. I'll give you the kind of final word on this.

Glenn Kershner (15:24)

Yeah. So I'm going to kind of back into an answer to your question. So for 30 years, I was a trial court prosecutor. I was never really a muckety muck at the doj, that I wasn't interested in it. And some might say I wasn't well equipped to be a muckety muck. But I always preach to our prosecutors, the ones that I supervised when I was chief of homicide at the D.C. u.S. Attorney's office. There is no shame in taking a difficult but righteous case to trial and losing. There is nothing but shame in declining to take a difficult, righteous case to trial for fear of losing. Now, I think when we talk about that Hill article and we talk about whether members of Congress should object to the electoral votes that were cast for Donald Trump because he is an adjudicated insurrectionist, you know, I have never jumped to the end likely result. Well, it's probably not going to work. My inclination is almost always fight the good, right, righteous, honorable fight, even if there is a substantial chance of losing. However, I wouldn't want that to militate in favor of fighting suicide missions because then everybody ends up worse off. And I think we're right on that line. Because you rightfully say at the end of the day, it's likely to just hand Donald Trump another win. That to me, is not enough of a reason not to fight the good, righteous fight to try to protect the American people from being governed, indeed, ruled if Donald Trump has his way by an adjudicated insurrectionist and somebody who was impeached and voted guilty in the Senate of inciting an insurrection, somebody who both the Colorado Supreme Court ruled was an insurrectionist and the United States Supreme Court did not disavow or undercut the fact that he is indeed an insurrectionist. I mean, I think we have to lean forward as far as we possibly can tactically without falling flat on our face and breaking our nose in order to find ways to fight the righteous battle. But I have to agree with you that in the event any of this ultimately goes back to the Supreme Court, whether they deem this a political question, justiciable or not, let's assume it goes back to the Supreme Court. After January 6th, what do we think the Supreme Court is going to do? They're going to say, well, just like we told you back in March, you need implementing legislation from Congress. You don't have it. So if we told you once, we're now telling you twice. So I understand this is somewhere between an extraordinary, extraordinarily difficult righteous mission and a suicide mission. And, you know, these are difficult calls. Again, if it were my oath on the line, I would have a hard time being part of the process that declined to object to an insurrectionist governing the American people for the next four years. That's just my personal take.

Ben (18:44)

Yeah. You know, and so, you know, there. There's really doesn't seem to be a whole great deal of. Of disagreement, you know, you know, anywhere there. It's just. It's fraught with these issues, you know, is Magna Mike Johnson and the Republicans going to join on, you know, to any objections? I mean, the answer is no. So then Trump gets a win there. Then it goes to the Supreme Court with the same composition. He gets a win there. To your point, though, you keep on fighting it, even if you keep on losing it, and even if you put it all on the line to lose it all and people can net out and say, is that is where does that fit to your point, on the kind of suicide mission, to use another term, but similar to that, and where are you pushing the boundaries of what the law is? And more importantly, though, what can we do with our platforms systemically here? Because we talked about the 14th Amendment, Section 3, and I'd love to have you on to talk about other issues too, but I think. And by the way, you and BTC are great together. I. I love seeing you there, and I love all of the hot takes. So everybody subscribe to Glenn's channel Justice Matters, and you do great takes with Brian Tyler Cohen. I love those takes. But this is not unique to this issue. When we talk about Second amendment jurisprudence, when we talk about women's reproductive rights, when we talk about the Lemon test, which used to be a test that would govern the separation of church, Church and state. When we talk about any of these issues, the role of agencies in the government, the Supreme Court under its current composition. Right. Glenn has this tortured analysis similar to what we've seen here, to come out with counterintuitive, illogical, and let's just call it what it is, in many cases, unlawful outcomes that actually become the law of the land. And then as law professors and teachers in this area, we have to go explain this. Like, here's what they ruled. And people go, but that's not what it said. I go, I know, I'm Just telling you, this is what they ruled and what can be done. But here's what they said, and that's frustrating as heck for law students, but that's just part of, you know, that has to change.

Glenn Kershner (21:11)

Yeah. And listen, we didn't even get to talk about one of the most horrific examples of them really ignoring the plaintext of the Constitution, Trump versus United States, the presidential immunity case. I think what they did there, granting a president an enormously broad swath of immunity to commit crimes against the American people, including crimes designed to try to unlawfully retain the power of the presidency, what they did there, and I'm going to quote somebody who is so much smarter than me, Yale law professor Akhil Reed Amar, constitutional scholar, he said, and I can pretty much quote it verbatim, they ruled that the Constitution itself is unconstitutional. In my view, Ben, they have been abusing their discretion by torturing or ignoring or twisting or overriding the express language of the Constitution in any number of ways. And one of the very difficult questions to answer is what can we do? What should we do when the Supreme Court abuses its discretion? And I don't know if we're going to end, but, you know, I'm always looking for a little bit of optimism and a point of light. But listen, the Supreme Court gets stuff wrong. Look at Plessy versus Ferguson, right? The horrific separate but equal, government sanctioned, government sponsored racial segregation. That was 1896. They decided it, it took 58 years to make it right with Brown versus Board of Education, which kind of finally put a nail in the coffin of Plessy vs Ferguson. Listen, there's nothing that says we can't try to get back up to the Supreme Court on this extraordinarily important issue, whether an adjudicated insurrectionist and somebody who was impeached for incitement of insurrection should be allowed to govern again, contrary to the express language of Section 3 of the 14th Amendment. So if there's a vehicle to get that back up to the Supreme Court, I don't know that there is in the near term, it is something we should also be pushing and exploring.

Ben (23:20)

With Plessy and the precedent surrounding that, though, how many years, years did that get take to be kind of overturned?

Glenn Kershner (23:29)

58.

Ben (23:30)

58 years, you know, so we don't have 58 years, you know, but, but, but the, the, the issue is when they create these precedents, the challenge of the precedent takes time. And that's very frustrating. I wish it could be done overnight, I really do. But exactly. We don't have 58 years. But we do have is our mics, our YouTube channels, our voice. And we have to create something here, I think like a good, a pro democracy version of what the Federalist Society was creating back in the 70s. And they built and went into universities and built the justices into this type of thinking that has, you know, by the way, I think it kind of became something even different than maybe they had set out and far worse and metastasized into something else. But this is a generational project and I know that's frustrating because we need action now too. But I wanted to make that point about the 58 years as well, because it wasn't the next year or within three weeks of the ruling or a year of the ruling. But Glenn, we got to have you back. These types of conversations I think are important. I think we just need to have more of them. And I'm grateful for your friendship and I'm grateful for everything you do.

Glenn Kershner (24:55)

Yeah. Great to be with you, Ben. Keep up the good fight the pro democracy fight, the pro rule of law, the pro constitution fight. Because it sounds trite, but we are all in this together. And that's the only way we're going to win. It is together.

Ben (25:09)

Absolutely in it together. Hit subscribe. Let's get to 4 million together. Thanks everybody. Real quick, Meta just changed their algorithm to suppress political content. Please follow our Instagram it's touch right now as we head towards 400,000 followers. So you don't miss a beat.

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