After catching up on a few odds and ends, we decide to give the people what they want and discuss Section Three of the Fourteenth Amendment and whether the Supreme Court could possibly declare Donald Trump ineligible for the Presidency. You won't want to miss it.
After catching up on a few odds and ends, we decide to give the people what they want and discuss Section Three of the Fourteenth Amendment and whether the Supreme Court could possibly declare Donald Trump ineligible for the Presidency. You won't want to miss it.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, it's been a little while. Will, this is our first episode of the New Year, 2024, an election year. We are recording this on January 8th, so off by two days of the anniversary of an extremely significant historical event. If you remember what I'm talking about, that's going to be relevant to what we're going to be talking about today, which is the thing that happened at the Capitol, January 6th. I don't want to describe it [crosstalk] using a noun yet, because that's going to be relevant to what we're going to talk about. Do you remember, Will, you were the person that told me that was happening?
Will: I don't remember that. [crosstalk]
Dan: I was in my office, not really paying attention to stuff, and I got a text from you. You were extremely concerned about it. You thought it was extremely bad.
Will: I believe I was watching the electoral count process at the time to see how it is disrupted.
Dan: When it happened?
Will: The feed cut out.
Dan: Yeah, I was not [crosstalk] paying less attention.
Will: "What happened to my Congress? Where did they go? Oh, the protesters have breached the Capitol."
Dan: Yeah. And it was interesting because I feel like-- I don't remember our precise conversations, but I feel like maybe before the election, I had expressed general concern about what's going to happen, whether there'd be a peaceful transfer of power. It's been a long time, so I don't want to try to put words in your mouth, but I think that you were like, "It's going to be fine. Don't worry. Everything's going to be okay." And then, if anything, you were more concerned about what was happening at the Capitol than I was maybe, because I had priced in the chance of something like this happening. I'm not sure.
Will: Yeah, that could be-- It's been a long time, and I've done a lot of thinking about the sense. It's hard for me to reconstruct everything. I do remember after the election, somebody-- not a lawyer asking me, sort of, "Okay--" I think it was after the newspapers called the election for Biden, like a day later, asking me, "Okay, so is this it? Is it settled?" And I remember saying, "Well, a funny thing is it's not really clear when it's settled. There's this day these electors are going to meet, and it'll be a lot more settled after that. And then there's this day the votes are counted in Congress, and it'll be more settled after that. But really, until noon on January 20th, it won't be totally settled."
Dan: By which you didn't mean to imply that that was a good thing.
Will: Descriptively, that’s--
Dan: Yeah. Just keeping that possibility open. Okay. Well, we're going to come back to that quite extensively today, because I think we're going to finally give the people what they want, which is an episode about Section 3 of the 14th Amendment, on which you are, I think can probably say, one of the nation's leading co-experts. Is that fair?
Will: With my coauthor, Michael Stokes Paulsen?
Dan: Yeah.
Will: Yeah.
Dan: There are other folks who've written about Section 3 who might try to assert their own expertise. But I think you all have written, at the very least, a very long article about Section 3 of the 14th Amendment, and certainly the most downloaded article on Section 3 of the 14th Amendment at 100 plus downloads on SSRN and counting. Your argument, which you're going to walk us through a little bit today, but basically is, there's a bunch of steps in the argument, but it is that Section 3 of the 14th Amendment disqualifies President Trump from assuming the presidency, among other things has other meaning. Is it fair?
Will: Yes.
Dan: Okay. Listeners at home can't see the video, but I said that and then you made a weird face.
Will: Whenever you say something and then say, "Is that your view?" I usually am looking for a trap, but I think this time you were--
Dan: No, there's no trap here. There's no trap. I'm not interested in trapping you because I think that this is your time to shine to really say a little bit more about your piece. You released your piece into the wild, I don't know, two months ago. I don't remember exactly when it was.
Will: August.
Dan: Oh, has it been out there for that long? Okay, a while ago. Who can say when it was? I think it's fair to say this has had a tremendous impact. Now, before we get too deep into it though, should we circle back to any Supreme Court news, or should we just go into this?
Will: I feel compelled to at least apologize to the many, many, many listeners we have who wrote in about non-mutual defensive collateral estoppel, possibly the most emailed about topic on the show, since you and I forgot that Justice Brandeis is from Kentucky. I'll just say we had an interesting discussion about this in the last episode, skipped over an important case called Blonder-Tongue Labs v. University of Illinois Foundation, which discusses a form offensive, non-mutual issue preclusion, like where one person has a patent and goes around trying to force it against a lot of people.
It still has this idea that it's like the person who's litigating all the cases is the person thinks can be held against. It's still asymmetric, but it's important, skipped over it, might have implied it didn't exist. Sorry about that. Exciting to know that that was like right in the wheelhouse of our listeners, but that's the kind of thing that really gets people going.
Dan: Yeah, I guess when we were recording it, I didn't necessarily think that you were saying the broader thing that some people seem to think that you said. I thought it was something other than that, something narrower than that. But clearly, if you say something that causes six people to write in, then maybe we need to be clearer next time.
Will: Yeah, it's good, people are listening.
Dan: So, anything else? The Chief Justice released his annual report since we last recorded. He releases those on New Year's Eve.
Will: And they always have a fun little historical anecdote.
Dan: Yeah. This one was kind of a jaunt through the history of the use of technology in the United States courts and sort of suggesting, "Hey, AI is a thing now. Maybe that will affect us in some way, but probably not going to really change things that much or it's not going to make judges go away. We'll have to figure out how to use it and we're aware of it, and that's really all there is to say."
Will: Yeah.
Dan: Did this one feel like more phoned into you than some of them?
Will: A little. I think it's a great topic and actually, I basically agree with it. I do think, I don't know, people were expecting something different, but then that's always how they work because people are always expecting, this is the year the Chief is going to say something controversial, and they never do.
Dan: Sometimes he makes a pitch for digital salaries.
Will: Sure.
Dan: This one I thought was unusually, particularly anodyne. It had a feel of, "Gosh, it's mid-December. I don't have a topic for these yet. What are people interested in? I don't know, AI? That's a thing, right?"
Will: I feel like every third faculty lunch I'm at, we talk about AI. I wouldn't be surprised if the court talks about AI a lot. It's just like that’s they all talk about.
Dan: Yeah. So, I'm looking back-- The one last year was about protecting judges from threats, violence. It's a little bit more controversial. The audience all thinks we should protect judges, but it was intervening in ordinary politics given stuff that's happened the last couple years, arguably attempted assassination of Justice Kavanaugh. [crosstalk]
Will: Well, that was the Dobbs year.
Dan: What? Yeah.
Will: Well, that was the Dobbs year that he-- Yeah.
Dan: He did another one two years ago talking about financial disclosure and recusal. So, I don't know, I feel like they've been maybe a little bit more targeted towards stuff that's been happening.
Will: Do you not follow stuff, Dan? AI has made huge, explosive changes this year.
Dan: I understand, but it hasn't been a political issue for the United States courts and the Supreme Court, right?
Will: Right. That's true.
Dan: That's fine. It's fine.
Will: Lawyers are getting sanctioned for using AI to write briefs, so sure. The law students are--
Dan: Yeah. Like, no Supreme Court advocates have so far.
Will: No. Well, yeah, maybe they're getting away with it.
Dan: [chuckles] I wonder what is the most use of AI in a Supreme Court brief?
Will: Do you think this year at least one law clerk used AI to write a pool memo and got away with it?
Dan: Oh, man. I'd like to say no. Because I think that the clerks this year are unusually-- From the last few years, they have to be post-Dobbs, they have to be unusually nervous about anything that would result in a leak or disclosure. And to use AI, you have to be in the cloud and communicating with the cloud, and the AI could remember what you did. It's a little bit unclear exactly how it works. That's one of the things Chief Justice Roberts's letter mentions is the possibility of disclosure of confidential information. So, I guess I'd like to believe none of them would have done that.
Will: Yeah. And I guess that's the good one would be. If you could train a large language model on the pool memos database, so it understood what pool memos look like and what the patterns are, then it could probably write better pool memos than some people who clerked in my year.
Dan: Yeah. Although to the extent that they depend on independent lingual research, not obviously.
Will: That's true.
Dan: Right?
Will: That's true. Not every law clerk was good at that.
Dan: Yeah. [laughs] Do you have some names in mind?
Will: Absolutely not.
Dan: I'm not saying you're going to say them, but maybe you believe that some clerks your year were better than others.
Will: That's not possible. All clerks are equal.
Dan: Okay. Sorry, I got a little bit ahead of myself when I was getting really excited about the main topic of the day, but then I was realized that maybe we're supposed to talk about other stuff.
Will: Give people a chance to click fast forward a couple times.
Dan: Yeah. Two other quick things. Special Counsel Jack Smith wanted the court to grant certiorari before judgment on the issue of President Trump's presidential immunity from prosecution. I think a lot of us thought that they would, or at least thought that there was a good chance that they would. What did you think?
Will: I thought there was a good chance they would, but in retrospect, I don't understand how I could possibly have thought that.
Dan: [chuckles]
Will: Just to make sure I understand the posture, the case is in the district court, the district court ruled that Trump doesn't have immunity. Right?
Dan: Yeah.
Will: And that Trump's appealing it to the DC circuit. And so, then the request was to grant cert before judgment in the DC circuit and just immediately have the Supreme Court decide it.
Dan: Yeah.
Will: But the request is by Jack Smith, who won below.
Dan: Yeah.
Will: And outside of weird Camreta v. Greene qualified immunity stuff, the person who won below can't ask the Supreme Court to grant cert.
Dan: Yeah. So, do you think that there was no jurisdiction?
Will: I don't know. They say there's no jurisdiction or just that as a matter of the interpretation of the certiorari statute, you can't ask the Supreme Court for certiorari if you won.
Dan: So, you think they actually just couldn't have done it? Because I was wondering about that. It was a little weird.
Will: I wasn't really paying attention. Everybody was like, "The court's always going to grant this." And so, I thought, "Okay, I guess they will." I've never heard of them granting cert before judgment in order to tell the prevailing party that they're not only right, but really right.
Dan: I don't know. I wonder whether there's good examples. I'm trying to think of the other cases where they've did cert before judgment in the last, I don't know, long time. One of the ones that always comes to mind is Booker, the sentencing case. The government lost, I think. That was United States v. Booker. Am I right about that?
Will: I think it was United States v. Booker. But then, Fanfan--
Dan: Yeah, I guess that wouldn't tell you because you would put the petitioner's name first regardless, right?
Will: Right. I think it was United States v. Fanfan as well.
Dan: But that still wouldn't answer the question.
Will: Oh, yeah. Of who though?
Dan: Yeah. So, in Booker, the government lost on the Constitutional issue in the district court. So, I guess it would surprise me if there wasn't some example, because I feel like no matter what we talk about when we're like, "This has never happened," someone writes in is like, "No, this is just happened last term," or something.
Will: I take it. The reason, I mean, the idea, I guess would be that the special counsel is injured by the stay in the proceedings that's necessitated by the appeal. And so, therefore, we should eliminate, redress the injury of the stay in the proceedings by just granting the case now and deciding it really fast.
Dan: Yeah.
Will: But I don't think that works. I don't think your injury can come from a byproduct of the litigation rather than the merits litigation.
Dan: Yeah, could be. I share your instinct that there's something weird about it and that it's definitely a problem and that it's one that people didn't seem to be talking about quite as much as they should have been.
Will: This was pointed out in Trump's jurisdictional statement in the case.
Dan: But it just seemed like the discourse was like, "Oh, gosh, how can they not take this," right?
Will: Right. And what Trump said is, "In rare instances, this court may grant a petition for review from a prevailing party, but that victor must suffer an ongoing, traceable, redressable injury from the otherwise favorable decision of the lower court." See Camreta and a couple other cases.
Dan: What else to talk about? The court is going to hear another abortion case. This one's a little bit more complicated.
Will: Well, this is the one about EMTALA, right, the emergency room statute that says emergency rooms have to stabilize people.
Dan: Yeah. So, this is one not directly about the kind of Roe v. Wade type Constitutional issue, Dobbs Constitutional issue, but instead about whether federal law conflicts with the state law of Idaho, which bars abortion absent very stringent exceptions, and we're going to see what happens with that. Good chance that the immunity thing, the Trump immunity thing, still gets back to the court. And so, this may be an another extremely high profile, spicy, contentious term for the Justices.
Will: Yeah, I saw Steve Vladdeck, at least on his Substack and maybe also on Twitter, suggest, "This might just be the biggest term ever," the biggest term in recent memory. Just the number multiple gun cases, multiple abortion cases, multiple Trump cases, the number of explosive cases.
Dan: Yeah. Haven't you felt that way about every term for the past long time have felt that way? Like, I just feel like we've had big term, huge term after huge term.
Will: Yeah. Well, certainly the Dobbs Bruen term, which also had West Virginia v. EPA and Kennedy versus Bremerton and other big cases. That one felt unusually big compared to even last term where, okay, they had affirmative action and a few other things, but not as big a deal.
Dan: Yeah.
Will: The article I wrote about the shadow docket was supposed to be the foreword for the Supreme Court issue for a secondary law journal, the NYU Journal of Law and Liberty. And part of how it ended up writing the shadow docket was I looked at the cases and I was like, "There just weren’t any big cases this year." The biggest case was Hobby Lobby, which was like nothing, but it wasn't. And so, I realized it's a convention of the genre to say this is the biggest term, all these big things happen, but the merits docket was pretty quiet. So, let's look at the things people aren't paying attention to.
Dan: Turned out that was a good move on your part. Got you some cites.
Will: Yeah.
Dan: But might get some more cites for this article we're going to talk about. I don't know, I was wondering about this. Is this your article? The sweep and force of Section 3, coauthored with Michael Stokes Paulsen. Whether this will end up being a highly cited article or not. Certainly, it depends in part on whether the Supreme Court, which has now granted cert in this case coming out of Colorado. Colorado Supreme Court said that. President Trump is barred by Section 3 of the 14th Amendment from assuming the presidency and thus can't be on the ballot. If the Supreme Court agrees with that, that's going to be one of the biggest Supreme Court cases of all time. That's got to at least enter your top 10 most significant cases right there, if they do that.
Will: We could talk it through. I'm actually sure. Let's say yes.
Dan: A big deal, right?
Will: It's potentially a big deal.
Dan: No, I'm saying, if they disqualify Trump, that's more than potentially a big deal. That is actually a big deal.
Will: Yes. Well, they wouldn't be disqualifying Trump. The Constitution disqualifies Trump, if they say Colorado is allowed to--
Dan: Yes. Or, not just allowed. There's a way in which they decide it that just says he is not eligible for the presidency, right?
Will: Yeah, that's why I was having a little bit. So, this is a case about the primary ballot. One thing you could say is states are in charge of Article 2 elections. States, in fact, don't have to have elections. And so, sure, just as Colorado could just unilaterally allocate all its electoral votes for Joe Biden, they can allocate all their electoral votes for anybody but Trump if they want to. You could resolve the case that way. I'm not saying they will, but you could.
Dan: And so, that by extension, that would mean a state can impose whatever additional requirements it wants onto the presidency.
Will: Right. That would be the argument. I know that's what they're going to say, but if they said that-- That would still be a big deal, but it wouldn't necessarily be the same.
Dan: Historically, either way, it would be important. But yeah, that's fair. Because in that universe, maybe that ends up meaning that Trump is not on the ballot in relatively blue states. Colorado is not the bluest state, but bluish. But it also would mean that maybe they pull Biden off the ballot in Texas or other places.
Will: So, one other thing I also wondered about this, and this is getting ahead of us is like, Trump was impeached for some of the same conduct at the end of his term, and then the senate didn't have the votes to convict in part, because a lot of senators thought that you couldn't impeach him once January 20th had happened.
Dan: Yup.
Will: But imagine, they had--
Dan: Or, said that, whether they thought it or not.
Will: Fair enough. Yeah. But if they had impeached him. One of the things they could have presumably would have done is disqualify him from holding any future office under the United States, also says that. So, then, had they done that faster, he'd presumably be disqualified from running again. I wondered like, imagine that had happened and imagine Trump tried to run again anyway, tried to run even though he's disqualified, would we think that the court decisions keeping him off the ballot, just like enforcing the impeachment clause were like the biggest thing ever or anything like that? We might not. That might just seem natural to us?
Dan: Yeah. Maybe just because there would be greater consensus, legal consensus on the fact that--
Will: That Seth Barrett Tillman has written an article saying, "The president is not an office under the United States and therefore, the president can't be disqualified. The impeachment clause." I assume the same wave of people who believe that the president is not covered by Section 3, but also say that.
Dan: Sure. But if there had been enough consensus in the senate to do that, then presumably, maybe, obviously, things could change between now and then, but there might be greater legal consensus that was legitimate and possible.
Will: Yeah, it's hard to know. Or, it might be that all those senators would have been primaried.
Dan: Yeah.
Will: It didn't take that many people. So, it's just weird what legal provisions we regard as intuitive and what legal provisions we regard as weird and radical.
Dan: Yeah.
Will: Something I've reflected about a lot as this litigation has gone on.
Dan: Yeah. Okay.
Will: But probably getting ahead of us.
Dan: Yeah. So, I guess I got a little ahead of ourselves too. So, maybe we should back up all the way to the beginning, and you could tell us what this provision is, and then we could walk through the arguments that you made about it in your article, and then talk a little bit about how the Colorado Supreme Court, what they did, and then what the arguments that are being made at the Supreme Court are.
Will: Okay. I'm going to try not to rehash too much of it, because I'm still hoping to get the downloads to 200,000 for the end of this year. But Section 3 of the 14th amendment says that, "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
That is, people who held some kind of office covered by the Constitution, who then engaged insurrection or rebellion, can't hold office again, obviously, at the time, directed at an important class of people who did that during the Civil War. And so, Paulsen and I were-- [crosstalk]
Dan: What was the cause of the Civil War? [laughs] They asked Nikki Haley this the other day.
Will: Yeah, we talked about it. I'm teaching a class on the Constitution and Civil War right now. So, we talked about this in the first day. So, here's what I love about this question. One of the things we read is the Cornerstone Speech by Alexander Stephens, Vice President of the Confederacy, who says that the cornerstone of the Confederacy is slavery and the inferiority of the black race." He says, "The one problem with our country and our Constitution is that the people who found that it believed in equality, and we now know equality is false, and so we're going to create a better, more scientific country."
Dan: So, this is at least probative evidence.
Will: Yeah. But here's the interesting thing. If you looked at what the north said-- For example, in the House, there was something called the Crittenden Resolution, which passed the House 119 to 2 about what is the cause of the Civil War, and it said, "We are not fighting this war about slavery. And in fact, we will end the war as soon as the-- We are fighting only about Union and not about slavery. And as soon as the south agrees to return to the fold, the war will end. We don't demand any changes."
Lincoln has a famous quote about how if he could end the war and return the south to the north without freeing any slaves, he'd be happy to do it. So, at least when the war begins, the north would tell you it's not about slavery, and the south would tell you it's about slavery. Now, I feel like we've all flipped stories on that, and it's the confederate sympathizer types who tell you it's not really about slavery, and it's all the rest of us. Of course, it was about slavery.
Dan: But at least, slavery was a but for cause of it, regardless of what might have happened to diffuse the controversy, had things gone differently, right?
Will: Sure.
Dan: Trump could have prevented it, by the way. Did you see this?
Will: [laughs] How is he going to prevent it?
Dan: He didn't make clear, but he'd said that better negotiation.
Will: Uh-huh.
Dan: So, presumably, what we call, the art of the deal could have avoided all that bloodshed.
Will: You want me to give you a sympathetic reconstruction of that?
Dan: Yeah.
Will: Well, another but for cause of secession is the election of Abraham Lincoln. The south decides, once Lincoln is elected, that the north cannot be trusted to keep to the various compromises they've been making. And so, it’s over. So, there's a sense in which if anybody other than Abraham Lincoln, and certainly anybody who wasn't seen as particularly sympathetic to abolition, were elected, the south might well not have chosen to see it. They would have been confused with this Donald Trump guy and where he came from, what his deal was, but it's conceivable that by dint of not being Abraham Lincoln, maybe Donald Trump would have taken things in a different direction. Not sure what worked out for-- [crosstalk]
Dan: No. I guess we'll never know.
Will: I hope not. Barring some sort of weird Constitutional law time travel thing.
Dan: Yeah. Okay, well, that might be the most sympathetic you're going to be to President Trump in this episode, but we'll find out. Okay, I derailed us again. I'm probably going to do that a couple more times, but let's keep going.
Will: Okay. The upshot of the article we wrote is that Section 3 remains an enforceable part of the Constitution with important consequences. It is not just about the Civil War. So, it's not only the insurrection or rebellion that was the Civil War, but future insurrection rebellions. It is what we call self-executing. Meaning, it just establishes a qualification for office, like the rule that Barack Obama can't run for more than two terms, that you have to be 35. It does not violate the due process clause or the bill of attainder clause or other Constitutional provisions, and that the definition of ‘insurrection’ and the definition of ‘engage in’ are sufficiently sweeping. They include the conduct of President Trump both on and around January 6th, 2021, and that he engaged insurrection, and therefore, can't hold office.
Dan: Okay. So, listeners might notice there's a lot of steps there. And to conclude that President Trump is ineligible, you have to run the table on those. If Section 3, it might not still be enforced. Maybe because it was really just about the Civil War, or maybe because some things your article talks about this that Congress did afterwards made it all go away. That's one argument. If it's not self-executing and requires Congress to do something to make someone ineligible, you lose. If it doesn't apply to the president and so forth, and then still we'd have the question, even if we got all the way through-- The legal issues, we'd know an issue that's sort of a factual application of law to facts, which is, what does it mean for Trump in particular?
Will: So, that's more or less right. I will say one claim we make in the paper that got a lot of people very mad at us was the claim that Section 3, to the extent of a conflict with the 1st Amendment and free speech principles, Section 3 prevails because it's the last in time. So far, all the courts to consider this case have concluded that that issue doesn't matter, that Trump's speech and conduct on January 6th isn't sufficiently protected by the 1st Amendment for it to matter. They've disagreed with us about that point. So, for instance, we don't necessarily have to win on that point.
And self-executing is a little complicated, because the context this case has come up in is in the context of state election law litigation. So, there are some state statutory causes of action and the like. It's not being brought up in a totally self-executing context. Congress hasn't acted. But the posture that gets us here, which maybe we'll just bring in, is a lawsuit in Colorado about whether or not Donald Trump could be on the ballot as a matter of Colorado election law. And the claim is, Colorado election law, as other states do, limits the ballot to qualified people. We don't want 31-year-olds or foreign citizens or dogs on the ballot. And so, if Donald Trump is disqualified, he shouldn't be on the ballot.
The trial judge held a five-day bench trial to determine whether or not the acts that took place on January 6th were an insurrection, and if so, whether or not Donald Trump participated in them and so on, concluded that January 6th was an insurrection, that Donald Trump engaged in it. But then at the last minute, the trial judge ruled in favor of Trump on the grounds that he was not covered by Section 3 because he was the president. And then it went to the Colorado Supreme Court, which ruled four to three that the trial court had been right about all the facts and right about everything other than the fact that the president is covered by Section 3.
Dan: Yeah. And a very long, to my eyes, very thorough and very clear opinion.
Will: Yeah, I think it's very good.
Dan: Were there any important ways in which the court's analysis differed from yours or went through a different route, or did it seem like they were tracking your arguments pretty closely?
Will: Pretty closely. I think, other than the free speech issue, which I think is totally fine to put to one side, I found myself nodding a lot as I was reading through it.
Dan: And then three dissents in that case. A couple of them on state law stuff, and then a lead dissent that's more about the Constitutional issues. Is that right?
Will: Yes, that's right. Two that are purely on state law issues, and one that's on its face mostly the self-executing issue that states shouldn't be the one enforcing this Congress should, but with a due process thing thrown in that then in turn brings in some of the state law questions again. So, it's a little bit several different issues in it. But that's the only dissent that the Supreme Court, in a way, will care about assuming they're not going to review the Colorado Supreme Court's interpretation of state law.
Dan: So, that happens. And then we have some petitions filed at the court. There's two different petitions. One is by the Colorado state Republicans. They file a petition. Attorney there is Jay Sekulow, who's a conservative media personality, radio and television talk show host and also a lawyer.
Will: He had one of the earlier Trump cases, didn't he?
Dan: Yeah. Trump has gone through a lot of lawyers. He's obviously not representing Trump here right now. That petition is filed a little earlier, but the court doesn't grant that. It doesn't deny it. That one is just sitting there now. Is that right?
Will: Correct.
Dan: Okay. And instead, we have case, a petition filed by Trump and a case that's now going to be called Trump v. Anderson.
Will: Yes.
Dan: That one, I have a question about who the lawyer is there. The Council of Record is a guy named David Warrington of the Dhillon Law group in Alexandria. Not a lawyer I was familiar with, not a law firm I was familiar with. They may have been involved in some other stuff, but not one of the famous Supreme Court advocates. But then, there was a document filed in the other case in the one filed by Sekulow. There was a document by Trump saying they're not going to file a response there for their technically respondents in that case doesn't matter. And then that was signed by Jonathan Mitchell, the conservative mastermind.
Will: He's also now listed on the docket of the Trump case.
Dan: Yeah. So, the question, maybe he had a hand in writing the petition and just didn't make it onto the brief. Don't know. Maybe he's going to argue it now.
Will: Mm-hmm. I see.
Dan: I don't know.
Will: Right. I assume he's either been in the background all along or has now decided to join. Now, this is made to the court, but I assume he's going to take the-- Certainly, if Trump is smart, he'll give Jonathan Mitchell, a lot of control of the pen here.
Dan: Yeah. I did think that the know didn't blow me away, but I thought it was a pretty solid petition in terms of craftsmanship through record advocacy.
Will: Yeah. [crosstalk] One interesting thing at the nerdery, the petition level, is the difference. So, their Republican petition, because one question is, what questions presented do you ask? So, the Republican petition asks three questions presented. One, is the president subject to disqualification under Section 3? Two, is Section 3 self-executing? And then three, whether this violates the 1st Amendment rights of the political party, because this is taking place at the primary stage. You could think that the primary has a right to send an insurrectionist to the polls, if they want to. Maybe we should fight about the general. But if they want to be the insurrection party, maybe we can't stop them.
Whereas Trump just posed one question presented, did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot, which lets them then bring in any number of arguments they want to. It doesn't lock them into just one, which, given how many different arguments there are, is probably a smart move, because all they have to do is get the court to bite one of them.
Dan: Yeah. And there was some interesting back and forth on the QP, because in the respondents brief that's filed in the Trump case, the attorneys there, Jason Murray, who's a partner at a relatively small boutique in Denver, former clerk for Justices, then Judge Gorsuch, and then Justice Sotomayor, their approach in the brief, in opposition, is to say petitioner Donald Trump offers a single question presented, which wrongly conflates at least seven discrete legal and factual issues in his petition. Properly framed, the questions are. And then they list seven things, which are some of those sub issues that you and I were just talking about.
I wasn't sure about this choice. It just seemed clearly all these issues are subsumed under the more broad issue of did the Colorado Supreme Court err. I wasn't totally sure--
Will: Why do that?
Dan: Yeah. I wasn't sure. First of all, you can say that you disagree with the matter of style or any number of other things, but I don't think that QP didn't conflate or anything. It just said, did they err? And there could be like 12 different reasons why it erred, or any number of possible reasons. And so, I don't totally understand what the strategy was here of showing that there's a bunch of different questions, maybe just like making it more complicated. I called it the briefing opposition. That's not quite right, because they agreed the court should grant cert, but obviously want the court to grant cert only some of the issues.
Will: Well, I think the reason to do it is to at least make it-- If the court wants to limit the questions presented, listing them out that way makes it a little easier for the court to do it because they could then say cert is granted limited to questions one, two, and five in the respondents brief. Whereas if you don't spell it out for them and they're going to have to write the questions for themselves, maybe that’s-- [crosstalk]
Dan: Yeah, that's fair.
Will: By doing that, you offer the court a chance to not just put everything together. I don't know if you saw this. There's this footnote in Trump's brief where he says, "Here are various reasons this is wrong." And then footnote four, "Finally, there are many other grounds for reversal, as many scholars have pointed." And then, just string cites a bunch of newspaper articles. Lawrence Lessig in Slate, Sam Moyn in the New York Times, John Harrison and Sai Prakash in the Wall Street Journal, Kurt Lash on SSRN, Richard Epstein. So, it's just like-- [crosstalk]
Dan: Incorporate by reference like the commentary at.
Will: At anything anybody's come up with, we're going to put on the table.
Dan: Yeah. I'm not sure if that works to preserve an argument, but what do I know?
Will: [chuckles] It does if they want it to, Dan.
Dan: Oh, that's true. Anything does if they want it to. Okay. So, what should we say about this? What should we say about the arguments that are being made Trump's petition? There's at least one interesting amicus brief we should talk about in a second, but we can get to that. But what struck you about the petition, if anything? I guess let me throw one out on the table among many other things. There's the order of arguments, if that makes sense.
Will: Sure.
Dan: So, if you look at the table of contents for the petition, first one is just about the cert standards and it says, Part 2, disputed questions of presidential qualifications are reserved for Congress. 3, Section 3 is inapplicable. Then Trump did not engage insurrection. Then the Colorado Supreme Court violated the elector’s clause by flouting state law, basically. And then at the end, Section 3 cannot be used to deny President Trump access to the ballot. Not necessarily clear that you had to go in that order. Do you think that they're trying to signal anything about the relative strength of the issues there?
Will: Yeah, I'm not sure. There is a way in which they are from the least in the weeds to the most, although you could-- It's like you shouldn't get into this at all because it's for Congress. Okay, you can get into it, but it's a pure question of law, which is that this doesn't apply to the president. All right, if you want to get into it, let's talk about what an insurrection is.
Dan: Yeah.
Will: All right. If you want to really get into it, let's talk about Colorado state law, which is something that outside of Moore v. Harper, maybe you don't even have jurisdiction to review. So, a little bit of that. But it's hard to know. And it's hard for me to know the right way to prioritize these arguments. You might think sometimes the view is with a normal client who the court has not heard of and doesn't have a preconceived view of, you often start by trying to paint your client in a good light. So, you might start by being like, "Obviously, this is not an insurrection, and my client is being railroaded and he's being falsely accused." And then you might transition to your legal arguments.
Dan: Yeah.
Will: Here, I take it that didn't seem like it was necessarily the way to go.
Dan: What else to say about it? I want to get into some kind of prediction game in a minute, but let's try to flesh out the legal issues. There's an amicus brief we could talk about. But is there more, at this point, having confronted these legal issues? Is there stuff out there, arguments being made that you all hadn't fully anticipated or stuff that's getting more airtime than you would have expected?
Will: Wow. Those are two different questions. On the 'not anticipated’, I hate to sound aloof and out of touch, but not really. I've actually just been struck over and over again by how many of the arguments are arguments that we anticipated and have an answer to, and it maybe doesn't persuade people. But in general, I've been struck by that. When we read our article, Kurt Lash had not yet written his piece on SSRN, which is a detailed walk through the legislative history of Section 3. There were some legislative histories of Section 3 done by especially Mark Graber, who has a book on this whole thing, and Gerard Magliocca had done a bunch of work on it, and we, of course, looked at it ourselves. But that's the one sort of-- He introduces several new claims when Section 3 was drafted that-- Frankly, I don't think are accurate, but that I hadn't fully anticipated that somebody was going to put those together exactly that way.
Dan: And have those translated into heavy arguments in the briefing.
Will: So, one of the claims he makes is that there was an early draft of Section 3 that included the president, and then it was taken out. And in the paper, he's actually, I think, pretty careful not to claim that it was on purpose or even that we know why it was taken out. But somehow it has joined the stream with the arguments that the president is not covered by Section 3, so that some people like Steve Calabresi now claim Congress deliberately took the president out of Section 3, which is just descriptively not true.
What happened is one guy had a proposal, a proposed statute that would have disqualified some people, including from the presidency, and then later there wrote a Constitutional amendment which you could imagine is based off of the earlier statute and is a little different. So, it's joined stream a little bit with the president is not an officer thing. That argument, I think, is the one that when we-- As you know, I have been telling people for many years not to underestimate Seth Barrett Tillman, who's one of the principal scholarly architects of this argument. And we devote, I don't know, 10 pages of our article to why we think the president is covered by Section 3, notwithstanding Tillman's work and notwithstanding even the parts of it I agree with.
But even so, I think it's been just as a meme interesting to watch that argument spread. I think that's the argument that some people thought, this is never going anywhere. That's ridiculous. Of course, the president's an officer, but it's definitely become one of the front runners.
Dan: Yeah, that's interesting. It strikes me as one of the less normatively attractive arguments.
Will: Yeah.
Dan: In the sense that, gosh, that would be dumb. If they had written this provision that disqualifies Jefferson Davis from being a senator, but not from being president.
Will: Yeah. Here's the thing, I think, is that if you don't understand the argument very much, if you understand it only on a high level, it feels like it matches this version of, look, this is a national presidential election. Surely, the people should decide this.
Dan: Yeah.
Will: Everything else. Even should Josh Hawley stay a senator, which I think he's not covered. Everything else feels like, "Okay, that's a real question. I can imagine the courts deciding it." But the presidency is just such a big deal, because it feels like it merges with that argument a little bit. The argument is very technical. So, the argument is that the president is an officer because the Constitution calls him an officer, and most people concede he's an officer under the United States, which means he can be disqualified under the impeachment clause, which means Jefferson Davis couldn't do for president. But the argument is that he is not an officer of the United States, because the Constitution uses different phrases for the question of like, who's taken an oath versus what thing you can hold in the future.
So, when you start focusing on it, it just starts to feel really weird. But then here's the amazing thing about this argument. If you want to rule against the Colorado Supreme Court, rule in favor of President Trump, and you want to take this issue totally off the table for the 2024 election, you don't want to risk Congress getting involved and Congress deciding on January 6th, 2025, not to count the electoral votes for Trump or anything like that. So, you want to say like, "As a matter of law, Trump's not disqualified," and you don't want to have to get into the record and try to argue about the facts and what the standard of review is, then this is the perfect argument. It's the argument that rules for Trump, doesn't reserve it to Congress, and doesn't depend on what exactly happened or what he was thinking.
And then the other amazing thing about this argument is it literally only applies to Donald Trump. So, the argument is that somebody who's taken the oath office as president is not covered, because technically, that's not the oath office taken by all other officers. And every other president in American history took at least one other oath of office, because they held some government position before becoming president. Like, so, Barack Obama would still be covered because he took the senatorial oath. Joe Biden, George Bush took the gubernatorial oath. Literally, the only president in American history who's ever taken the presidential oath office without having taken any other oath office is Donald J. Trump. So, it's a legal argument that Trump wins and has literally no implications for any other human being who's ever lived, which is, in that sense, almost hilariously beautiful.
Dan: Do you think, should we wait to make predictions until we've gotten everything else on the table? I'm so eager to talk about that.
Will: Yeah.
Dan: There's another out that you and I talked about a little bit before the show that might also be attractive. This features in an amicus brief by Senator Daines, and on behalf of Senator Daines and the National Republican Senatorial Committee that was filed by inestimable team at Jones Day. That's a positive adjective, right? That means, like, they're really good, right?
Will: They are really good.
Dan: And that, I think, is another kind of out. And as I understand, the argument is that Section 3 makes people who have engaged insurrection taken an oath and so forth ineligible to be president or to be whatever, but not to run for that office. And so, the Congress can always fix it. They can remove the disability. And so, it doesn't make any sense. You're adding this extra qualification requirement to say, "No, you can't run." That's improper. That also strikes me as a non-crazy off ramp, although I guess it would mean that the Supreme Court would then have to decide the question on January 21st if Trump is re-elected.
Will: Well, right. We could talk the realist version and the merits. So, this argument is a kick the canned on the road argument, and there are a lot of arguments in the case that kick the can on the road somewhere saying it's up to Congress to decide, kicks the can on the road also to January 6th in the electoral count. So, one question is just, will it be attractive to the court to kick the can down the road or toss the hot potato to Congress or whatever metaphor you want? I'm not sure. If they do that, I think there is a real chance that on January 6th, 2025, it'll depend a lot on the composition of the House, which will be determined by the 2024 election. But there's a real chance that this will derail the electoral count, a weird reverse John Eastman scenario. So, just as a descriptive matter, it has that risk.
On the merits, I think this is really just a fancy ripeness argument. It's true that the Constitution refers to holding office, not running for office. And so, one question is, if you can't hold an office, does the state have to put you on the ballot anyway? Do they have to let you run into the brick wall when you can't get through it? There's an opinion everybody loves to cite by then Judge Gorsuch from the 10th Circuit about somebody who was not a natural born citizen who wanted to be on the ballot for president says, "No, the state does not have to put unqualified people on the ballot."
Dan: Yeah. I went and read this. Excited to see what he said. And unfortunately, it's like a paragraph, unpublished--
Will: [crosstalk] Unpublished opinion. They thought it was so obvious it only needed a paragraph analysis. And so, you might think Section 3 is kind of the same. The argument is Section 3 is different, because it has this special amnesty provision that Congress can, by a two-thirds vote, remove the disability if they want to. So, you might say like, "We don't really know if you're disqualified until the final moment."
Dan: It's weird though because Congress also, by two-thirds vote, can vote to amend the Constitution. And yes, it still would have to be ratified by the states. But you could say, maybe if Arnold Schwarzenegger gets elected, Congress will pass a Constitutional amendment, and a bunch of states ratify it.
Will: Right. It's always the case that things could change. Right now, Trump is disqualified, and right now, Arnold Schwarzenegger is disqualified, which is more likely passing a Constitutional amendment to let Arnold run or passing an amnesty statute to let Donald run. I'm genuinely unsure.
Dan: Yeah.
Will: I think that's normally what ripeness doctrine is for is for that kind of prudential question, then asks like, "Well, is there some reason we should wait, is there some reason we should decide it now?" So, I think ultimately, it boils down to that kind of ripeness argument, which I'm not sure whether the Colorado courts even have to follow federal ripeness principles exactly.
Dan: No, that's interesting. But it's not strictly a ripeness argument. They're saying it's like a U.S. Term Limits, Inc. v. Thornton argument, right?
Will: Right. They're describing it in that way as saying the state is adding to the qualifications by saying, you have to not only be disqualified as of January 2021, but effectively they're saying you have to not be disqualified as of January 6th, 2024. They're adding a year in which you have to not be disqualified. But you are disqualified now. So, which way to think about it depends on what you think of whether you take the disqualification seriously or not, I think. But it's a very well done brief and yeah, it's not at all inconceivable that if-- If the court is looking for an out that kicks the can down the road, this is an option.
Dan: Okay. Does that lead us into the kind of predictology?
Will: Sure.
Dan: Okay. So--
Will: You go first.
Dan: First, I'm going to direct people a place that we've directed them before, which is Adam Unikowsky’s Substack, a highly successful Supreme Court litigator at Jenner & Block. Adam Unikowsky, former law school colleague of mine on the Harvard Law Review, wrote a piece a couple of months ago before Colorado Supreme Court decision where he said, "Everybody thinks it would be crazy, but I actually think there's a 10% chance the Supreme Court would rule for Trump." I said, "Eww, Supreme Court would rule that Trump is ineligible." And he goes through and he's like, "Look, here's this issue. Here's why Trump would have a tough argument here. The court had a tough time ruling for him." And then, so, he has a new post updating that to 20%.
I think that if you look at it now that the court is granted cert, if you have to rerun the numbers a little bit, so maybe it's 22% or something, but he goes through it and makes some arguments as to why particular steps in the analysis would be pretty unappealing for them. I think it's going to be very hard. The court is not going to go through all the steps and then say, "Yeah, it's self-executing, applies to the president, it's ripe, whatever. But we're going to go through his tweets one by one," and say like, "This doesn't quite get over the line to insurrection." I don't believe they're going to do that. That strikes me as probably the hardest and most politically unpleasant and any number of other things, like things that they wouldn't want to do. They'd have to be reviewing factual findings, all sorts of reasons. Does that make sense?
Will: It does. It makes sense to me.
Dan: I've always thought that was one of the places where your argument was not necessarily on the strongest ground. I'm not saying you're right or wrong, but I just thought that application of the law there-- We don't have a tweet or him saying like, "Go in with weapons and kill everybody." And so, it's very fact specific. Some of the stuff in the Colorado Supreme Court decision, they rely on this sociology professor who basically says, "These are like insincere coded messages to his supporters." There's stuff like that you can do, but it still strikes me as, even if you really want to reverse, maybe you try to figure out a way you can get off the train before getting to that point, having to go tweet by tweet.
Will: I see that. I do wonder, how do you think Donald Trump would react if the Supreme Court issued a ruling saying the election was not stolen? January 6th was an insurrection, but Donald Trump did not sufficiently engage in the insurrection to be covered. Had he engaged, he'd be disqualified. But he wasn't sufficiently a part of January 6th. That'd be a victory for him. But I wonder, would he respond by saying, "No, no, I had their backs. I was part of them." Or, would he take the W?
Dan: I think he would. My guess is the latter, but he might still find some grievance. But I think that the bottom line would be what matters there, right?
Will: Right.
Dan: He's eligible for the presidency.
Will: Yeah. The other problem with reversing on that kind of ground is that Trump had the opportunity to put forward a lot of evidence he didn't avail himself of in trial court. Most obviously, he could have taken the stand. He could have taken the stand, taken the oath, and credibly testified that this is not what he wanted to happen. And that when he learned that people were engaging in an insurrection, he was horrified and wanted nothing to do with it and tried to stop it and was upset by it and all that stuff.
Marjorie Taylor Greene did this in Georgia when she was challenged and convinced the hearing officer that she was not part of the insurrection. I think had Trump done that. He'd be on much stronger ground on.
Dan: Yeah.
Will: Well, who knows? [chuckles] Who knows what his testimony would have been like?
Dan: Okay. So, I guess my instinct is it's not zero. The Supreme Court is always capable of surprising us. I think that under the right conditions, you could imagine there being the three liberal Justices willing to go along or excited to go along or whatever. I don't necessarily think we're going to see a 6-3 split. I'm not sure if Justice Kagan is-- If there aren't some republican appointed votes, some conservative votes to rule him ineligible, I'm not sure she's going to be willing to go out on a limb rather than keeping her powder dry. But I think if a couple of the conservatives are like, "Yes, I think he's ineligible," probably you get the other three votes pretty clearly. And the question is, are there two conservatives who would want to do that? Gosh, I don't know. Hard for me to believe. This is Alito and Thomas would do that. Very, very hard for me to believe.
Will: Justice Thomas dissented in U.S. Term Limits. Shouldn't he believe that Colorado can just do whatever they want?
Dan: Yeah, I guess that would be a narrower ground of decision, right?
Will: Yeah.
Dan: I'm not going to get into all the Section 3 stuff, but Colorado can put whatever qualifications it wants. But would certainly not be saying, I believe President Trump is disqualified from the presidency.
Will: Fair enough.
Dan: Convince me otherwise if you want, but that strikes me as unlikely.
Will: Well, this thing I find hard about all these--
Dan: You just think your originalist analysis is so good.
Will: I get that when people hear these arguments. They don't like them, they don't want to like them, and they don't want to believe them. That has been my reaction to taking them around. I also think that when people sit with the arguments for a while, they have a hard time coming up with the reason that they want to reject them, that they are willing to put their name on. Kind of think of it as where we started, it's like, what is the alternative? There are a set of arguments that aren't great that involve kicking the can down the road to Congress and praying that the electoral count goes better in January 6th, 2025, than January 6th, 2021. And then your other options are to dig into Trump's tweets or to say that the president is not an officer of the United States, even if he's an officer under the United States and an officer near the United States. Those don't seem that appealing either. To make up some new definition of insurrection on the Volokh conspiracy, Steve Calabrese has announced that an insurrection or rebellion has to be basically Civil War level to count. Unclear why that would be true. Of course, the Civil War didn't start out Civil War level either.
Dan: [chuckles]
Will: So, that's where I get stuck is on the-- Even if you assume motivated reasoning, I just don't quite know how they're going to get there. I don't know if this is a prediction, but one of my colleagues just said to me earlier today, "The best result for the country would be for it to be 6-3 with all the Republicans voting against Trump and all of the Democrats voting in favor of Trump, [Dan laughs] because the republican judges are principled formalists who don't believe about consequences, and the liberals all care about the consequences, even if the formal legal materials go against them." And so, that's what I think should happen.
Dan: That would be very interesting. Maybe that's right that that would be the best. But that strikes me as extremely unlikely.
Will: He offered me 100 to 1 odds.
Dan: I would put 5 bucks 5 on that. Make $500.
Will: You're not going to make $500.
Dan: Well, some chance. Yeah, I agree.
Will: Some chance, but it’s not 100.
Dan: Yeah. I take a million to one.
Will: Okay. Fair enough.
Dan: I think it's sub 20%.
Will: You think Adam Unikowsky is too generous?
Dan: I think so, just because not because I think anything he says about the law is wrong. But just go back to the fundamentals, which is, first of all, this would be a huge deal. The court is already in the crosshairs. It would be the court deciding a really, really consequential thing, taking something out of the hands of the voters, and it would make the court really an intense focus of this presidential election. I was talking to somebody, and they made the case to me, "Look, at least some of these guys would be delighted to get rid of Trump." And Trump is disqualified, and then Nikki Haley can be president.
Will: She probably has a better chance of general elections.
Dan: Exactly right. That if you're a republican elite, a lot of those folks don't love Trump. They like him to the extent that they think he can help them win national elections. But all the evidence so far is that he is hurting them in national elections post-2020. And I think if you're a prestigious DC inside the Beltway Republican, you're probably happier with a Haley presidency or a DeSantis presidency, something like that. You're certainly happier with a candidate who gives you a better chance of winning.
And again, I'm not saying these are necessarily the considerations that the Justices are bringing to bear, but it does make this a tiny bit more complicated than the just like, here's the outcome liberals want, here's the outcome republicans want, and that could help a little bit. It's not handing the presidency to Biden. Like, it's not doing this on the eve of the election in some way that makes it clear that Biden's going to win.
Will: Right. Therefore, it's not disenfranchising millions of voters. Everybody can still vote for almost anybody else.
Dan: It's just disenfranchising them vis a vis their preferred candidate for whom there are a bunch of republican primary voters who want Trump more than anybody else.
Will: Right. But it's saying they could get their second-best candidate, and then they might well actually be more likely to get their second-best candidate than their first best candidate. So, on net, you might be enfranchising them against their will. They would like to throw their vote away, but we'll stop them.
Dan: The question is, if Trump is going to win, it goes back to this question of like, what ground is he going to win on?
Will: Yeah.
Dan: We talked about this a little bit, but maybe, can I just ask you more clearly, if your view loses, does it lose definitively or do they kick the can down the road? My guess is they don't want to kick the can down the road.
Will: I agree with that. If you judge by the commentariat, it seems like it's the president is not an officer of the United States. I think they've got Kurt Lash now, they've got Blackman and Tillman, they've got Michael Mukasey, they've got Steve Calabrese, they might have gotten to Richard Epstein. I think there are others. So, trying to be objective about this, I guess that's the play people are running with. As much as I try to discharge my duties of charitably reconstructing other people's arguments, I have a really hard time drafting the Supreme Court opinion that says that the president is an officer and an officer under the United States, but not an officer of the United States. And that’s what this all turns on. I have a really hard time imagining the Justices doing that. Maybe if they don't read it, like maybe they write it and then don't look at it, maybe they can do it. I'll probably look foolish when they all succumb to the same meme that has taken on Steve Calabrese and other smart people.
Dan: If you're going to lose, that's that.
Will: I guess.
Dan: Where do you peg? I know that obviously you care about the issue, having written about it and you want the Supreme Court to agree with you on the legal issues. But if I said, where would you put money, put putting aside whatever ego, personal stake you have in it, where would you put it?
Will: Look, it's hard to put that aside. Again, I guess if I'm objective, I have to assume that you and Adam Unikowsky know the odds better than I do. But again, this is, again, where-- It depends also maybe on how the litigation unfolds. Maybe we can check in about that, because I feel like there's this interesting problem about the timing of the case, which is the longer it takes-- If you wanted to say that Trump is disqualified, you should do it yesterday, because the primary season is unfolding and the more time people have to pick among the eligible candidates, the better. And so, the longer you let this go on, the harder it is to unwind.
But I also think it takes you a while to think about this issue to really understand the problem. So, on the one hand, if the court had to resolve the case tomorrow, that might make it hard for them to rule against Trump, because they hadn't yet thought through. But if we gave them a year, it would now be kind of late.
Dan: Yeah. If they kick it down the road, that does at least give them some meaningful chance that they don't ever have to decide it, if Trump loses.
Will: Well, sure. Or, if Trump wins, but the House election turns out such that they're deadlocked on, or the Republicans win enough votes in the House and the Senate that they can control the electoral count to make sure that--
Dan: But maybe nobody has standing. I think we can just stipulate. There's not going to be enough votes to remove the disability, right?
Will: Right. It depends on the kick the can rationale. If they say something like only Congress gets to decide.
Dan: Yeah.
Will: Which comes in a political question flavor and a nonpolitical executing flavor.
Dan: Yeah.
Will: Or, if they say some version of the Jones Day argument, which, again, might boil down to only Congress can decide, then they might be rolling the dice on what happens on January 6th.
Dan: Yeah. If that's the case, would that be a presidency specific argument?
Will: Well, if you say it's always non-self-executing, so only Congress can ever enforce Section 3, that would apply to everything. If you say, well, at least in the case of the presidency, that's too big for any one state. I remember Section 3 applies also to the office of county commissioner in New Mexico.
Dan: Yeah, because I was wondering about. That was my next question, which is, does Congress really have a role in deciding who can be a state, a councilman or something?
Will: The leading case on non self-execution, Griffin's case, that's what it says, the issue there is a Virginia county judge who was in the Confederacy and who kept his office afterwards. And Salmon P. Chase says, "Well, until Congress does something about this county judge, nothing we can do about." That was not the practice otherwise, like other states did disqualify state officials, mostly people, even executive officials did that. But if you took that argument really seriously, it would say Congress has to legislate for the dog catcher of Denver.
Dan: Which seems impossible.
Will: Right. This is the problem.
Dan: Okay. Well, we're going to find out quite soon. So, the court has this on a super expedited schedule. That's going to be a lot of fun for the lawyers. And the argument is going to be February 8th. So, a month from today. Opening brief is due the 18th, respondents brief is due the 31st of January, and then reply brief is due five days after that, February 5th. And then given how much they're expediting this, presumably, they're going to want to get the decision out. I imagine they're not going to want to get this out as a last day in June decision. Maybe that'll be unavoidable.
Will: Yeah, I assume they're going to want to issue it before Super Tuesday. I guess if they know they're going to roll in favor of Trump and he's going to be on the ballot everywhere and they're just going to say, "Okay, that was fine," then I guess they could take their time. Although I worry there's going to be a night before the exam is due effect, where they're like, "Well, we're going to rule for Trump. We can take our time and come up with the best reason why." And then at some point, they're all standing around going, "Wait a minute, what was the right reason?"
Dan: [chuckles]
Will: This is an unfair comparison. But you know that the case of Ex parte Quirin about the execution of the saboteurs during World War II?
Dan: Yeah. Where the president Roosevelt, according to some sources, had signalled to the court he was going to carry out the execution no matter what.
Will: Yeah. And then they said, "It's fine." They ruled that opinion that it was fine. And then I think people uncovered this like, when it came to the drafting later, some of them had regrets.
Dan: Yeah.
Will: They are like, "It's not obvious this isn't the right side, but too late now."
Dan: All right. Anything else you want to say about this? This is your moment. Interestingly, you have not been all over the media with this. You've let your article speak for itself.
Will: Yeah. I've been appearing on Akhil Amarpodcast a lot.
Dan: You haven't done Fox News, MSNBC?
Will: No, I haven't done those things. I'm leaning against filing the amicus brief.
Dan: I guess I'm curious like, what you would say in that you haven't said in your article. There are arguments that are specific to this precise procedural posture that didn't come up in your article, which is a more general set of claims.
Will: Right. Look, yeah, we could get into the details of Colorado law or based on the factual findings and things like that.
Dan: Yeah. In the proceeding, we didn't really talk about the argument about is Colorado law. Did the court so radically misinterpret Colorado law as to make it a federal Constitutional issue?
Will: Sure. I think the argument for that is fairly weak.
Dan: That was my instinct. I didn't get deep into the statutory structure, but it struck me as relatively not so clear as to get over that threshold.
Will: Right. That's my impression as well. Yeah. That's the thing is, I feel like we laid it out there and people have to dig into it and people have to find the truth on their own. And my writing another 12,000 words repeating what we already said doesn't help. Either people are going to work through it or they're not, and it's only so much you can do about it.
Dan: Well, we will see. Perhaps, sooner rather than later. I'm already anticipating the possibility that I'll have to substitute in a day of reading in my Con Law class. Haven't decided what would get cut, but I do think if the court decides this case, probably that students are going to talk about it. Certainly, if they say he's disqualified, I would feel some obligation to teach it. So, let's see.
Will: Yeah, we'll find out. This is just a case where we don't even know really what the briefs are going to focus on or who the amici are going to be or so much. So, over the course of the next month, the case may also hopefully focus a little bit.
Dan: All right. Anything else? Are we good there?
Will: Yeah.
Dan: Okay, lead us out.
Will: Thanks very much for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: Please rate and review on the Apple podcast store or anywhere else you get the episodes. Check out our website, dividedargument.com. We put transcripts up relatively soon after the episodes. store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com or leave us a voicemail, preferably in song form, 314-649-3790. And if there's a long gap between this and our next episode, it's because the Colorado Supreme Court has declared we are ineligible to record podcast episodes.
[music]
Dan: So, Will, I thought we'd sneak in an after-show. I'm not sure how many people keep listening after the closeout music or saw that there's a little bit of time left, but a little bit of a fun thing for everybody. We got a submission from Joel Fulton, who was the famed submitter of the first song.
Will: Unpersuasive scholar trolling.
Dan: Yes, unpersuasive scholar trolling. I don't know, if that's actually the name of the song. It's the name of the episode in which the song appears. But he doesn't have a new song as such, but he made an alternative theme music for us, which I think we're not going to adopt. We like our current thing. We've got a brand, but thought we would play it for you all, might enjoy it. So, check that out.
Joel: Our music is a little mysterious. It's exciting. When I had the music commission, actually, I sent the guys some true crime podcast, and I was like, "I listen to a lot of these. Give me something in this universe. Who killed democracy?"
Speaker 3: Article 2, Section 1 provides that the executive power shall be vested in A president of the United States. It says that the executive power, not some executive power, shall be vested in A president of the United States, not a president of the United States and others.
Joel: Well, this mantra, I use a lot. Putting out your faith in princes. The more you become tempted to really believe in the Justices, the more you're setting yourself up for disappointment.
Speaker 3: The judicial shall never exercise the legislative and executive powers, or either of.
Joel: I guess what I mean to say is, maybe this really incriminates the Justices. Does this kill your article? Nothing makes my article sad. Ludwig Wittgenstein, he quotes the Tractatus Logico-Philosophicus, whereof one cannot speak, thereof one must be silent. I've accused you of being like a tool in the hands of right-wing legal movement machine. We should do a super cut at some point, collect them all.
Speaker 4: Nobody ever tries to crown the other side president, just because the electoral college is really, really stupid.
Joel: You can civilly say, there is no reasonable debate to be had whether slavery was a good thing, that is not a legitimate topic for debate, I'm not going to participate in the topic about the debate without being uncivil about it. That's at least like a facially plausible, a suffrability argument.
Speaker 3: A lot of people think it says facially implausible. We'll get to that.
Joel: Oh, that's cool, man. Unscheduled, unpredictable. I want that to be my motto in life.
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