Should President Trump Be Allowed on the 2024 Ballot?

Thursday, January 11, 2024

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[00:00:00] Jeffrey Rosen: Last month, the Supreme Court of Colorado and the main Secretary

of State determined that President Trump engaged in an insurrection after taking an oath to

uphold the Constitution, and that he's therefore, disqualified from serving as President of the

United States under Section 3 of the 14th amendment. Hello friends I'm Jeffrey Rosen, President

and CEO of the National Constitution Center, and welcome to We the People weekly show of

constitutional debate. The National Constitution Center's a nonpartisan, nonprofit, chartered by

Congress to increase awareness and understanding of the Constitution among the American

people.

[00:00:37] Jeffrey Rosen: In this episode, we'll delve into the meaning and purpose of Section 3

of the 14th Amendment and the arguments for and against President Trump's eligibility to run for

president for a second term, a question the Supreme Court has decided to review. Joining me to

answer these questions are two of America's leading experts on Section 3, and it's an honor to

convene them today. Gerard Magliocca is the Samuel R. Rosen Professor at the Indiana

University Robert H. McKinney School of Law. He's the author of four books, including

biographies of John Bingham and Bushrod Washington, and has written extensively about

Section 3. Gerard, it's wonderful to welcome you back to We the People.

[00:01:19] Gerard Magliocca: Thanks, Jeff. Nice to be here.

[00:01:20] Jeffrey Rosen: And Josh Blackman is professor of law at the South Texas College of

Law Houston, where he holds the centennial Chair of constitutional law. His latest book and

introduction to constitutional law was a top five bestseller on Amazon and he's filed a brief with

Seth Tillman in Trump v. Anderson on behalf of the petitioner. Josh, it's wonderful to welcome

you back to We the People.

[00:01:41] Josh Blackman: Thanks so much, Jeff.

[00:01:43] Jeffrey Rosen: Let's begin with an overview of this complicated and historic case.

Gerard, what are the constitutional issues and how do you think the US Supreme Court should

decide there?

[00:01:54] Josh Blackman: Well, where to begin? The Supreme Court in granting review did

not specify which issues it wanted briefed or argued so, the argument is gonna be something of a

free for all and could last five or six hours probably, unless they do something to limit things

between now and then. But basically and in no particular order, the issues include, was January

6th an insurrection within the meaning of Section 3? Did Donald engage in an insurrection if

January 6th was an insurrection? Is the presidency in office that is covered by Section 3? Was

Donald Trump an officer of the United States, subject to Section 3 when he took the oath to the

President? Can Section 3 be enforced by court without an act of Congress setting forth some

procedures to implement that? Is the whole case justiciable at all? And I have not exhausted the

issues with that list of six.

[00:02:57] Josh Blackman: So, my view is the Colorado Supreme Court's decision should be

affirmed. I think the majority got it correct. And I think then if that decision is affirmed, that

would also permit Congress, if it so desires, to give Donald Trump Amnesty, as it can do by a

vote of two thirds of each House. It also, to some extent, allows states to pursue the primaries

according to state laws. As everyone knows, some states have rejected these challenges to

Trump's qualifications because they say state law doesn't permit such a challenge in a primary

and may not permit it at all. And affirming the Colorado Supreme Court doesn't necessarily

mean that all states must bar Trump from the ballot although the Supreme Court could try to say

that. It could allow each state to kind of do what it wants, at least in the primary process. Though

that gets a bit more murky.

[00:03:51] Jeffrey Rosen: Thank you for that great overview and for outlining the six questions.

So hopefully, we'll delve into them in a moment. But Josh Blackman, let me ask you broadly

how you think the US Supreme Court should resolve this case.

[00:04:05] Josh Blackman: Thanks again, Jeff, for having me on. It's a pleasure to be with

Gerard. He's one of the leading lights in this area and also a really good guy, so I'm always happy

to see my old friend. Sso I do have a dog in the fight. A lot of the arguments that had been

advanced were advanced by myself and my colleagues, Seth Barrett Tillman, many years ago,

long before Donald Trump was even on the horizon. Tillman, since 2008, has taken the position

of the President is not an officer of the United States. It's not a new position, it was articulated

many years ago, but Tillman's the most forceful voice for that position in today's market. He

persuaded me around 2012 or 13. So I've been on the Tillman boat for a while.

[00:04:44] Josh Blackman: I think it's possible and maybe even likely that a number of justices

find this argument attractive. It would love to say that Trump is not subject to Section 3 without

having to say what insurrection is. The other argument which we advanced in the last two years

or so is that Section 3 requires what's called enforcing legislation. That is Congress must pass

some procedure by which a person who is disqualified can be removed from office or otherwise.

No such legislation has been used to knock Trump off the ballot and said they've been using state

law. And, you know, the leading authority is a case called Griffin's case from Chief Justice

Chase, which we'll talk a lot about it.

[00:05:21] Josh Blackman: But if I had to, sort of, predict which is not worth very much, I

think the first argument on Office for the United States and the second argument, self execution,

will receive at least the majority of the court, which will result in reversing the decision of this

Colorado Supreme Court. Whether the five vote block, I couldn't tell you, but I'm very skeptical,

and maybe Gerard agrees that you get a majority to affirm across the board.

[00:05:43] Jeffrey Rosen: Thank you very much for that. Well, let's now delve into those two

arguments that you just flagged and then we'll move on to the others. The first is, is the president

and officer of the United States and covered by Section 3 or not? Gerard, tell us your views on

that including what the framers of Section 3 thought about whether or not the presidency was

covered.

[00:06:04] Gerard Magliocca: Right. So first, let me say that as it's great to be on with Josh

and I know that Josh and Professor Tillman had this view prior to January 6, 2021, because

Professor Tillman emailed me about it prior to January 6, 2021, when I had posted the initial

draft of my first article on Section 3. So this is a long-standing conversation that we've been

having. I testified about this question in the trial, in the Colorado case, I don't want to rehash

that. But basically, there's two thoughts here. One is that a lot of people describe the President as

an officer of the United States during the time that the 14th Amendment was under discussion,

including President Johnson, John Bingham, leading members of Congress. The evidence on that

side of things is pretty strong. The evidence on the other side is not as strong. That's true. No

matter what you think about what that term might have meant in 1787. That is to say, I'm happy

to concede, although others disagree with the view of whether officer of the United States

included the president in 1787. But my view would be well, even if it did exclude the president.

During Reconstruction, people define the President as an officer of the United States.

[00:07:26] Gerard Magliocca: Now, the second thing is kind of more of a purposive approach,

which is to say, "Look, everyone agrees that Donald Trump is the only president who never took

an oath to the Constitution before he became president." Right. He never served in an elected

position, in an appointed position or military position, unlike all other presidents. So, if you were

to say that Section 3 does not apply to Donald Trump, because the President is not an officer of

the United States, it would mean that he alone among all presidents, would not be covered by

Section 3, at least all presidents since 1868.A question why would that make sense? Doug, is

there a reason for that?

[00:08:08] Gerard Magliocca: Now, if the texts were unambiguous, then you'd say, "Well, we

just have to do it because that's what it says." But the text is not unambiguous. And I would say

then that there's gotta be a reason to say that Trump is to be excluded from Section 3. Where, if

President Biden did exactly the same thing and all other aspects of the case were satisfied to say

that Section 3 applied, well, Biden would be covered because he was a senator before he became

president. But Trump would not be covered because he wasn't any government official before he

became president. And I just don't think that really makes sense.

[00:08:47] Jeffrey Rosen: Josh, please tell We the People listeners your view about why the

President is not an officer of the United States.

[00:08:54] Josh Blackman: The starting point here really is the fact that officer the United

States is not a phrase that was made up in 1868. It was used in four provisions of the Constitution

in 1788. I think Gerard alluded to this. The Appointments clause says, "The president appoints

officers of the United States." The President is not an officer of the United States. The

Commission's clause says, "The President will commission the officers of the United States."

President does not commission himself. The impeachment clause separates the President, the

Vice President from officers of the United States. And the key one is the oath clause says that

there'll be an Article 6 oath for the officers of the United States, the President has not taken

Article 6 oath, he's never done it.

[00:09:34] Josh Blackman: This is what the trial court found persuasive that in these four

clauses, the President is not an officer of the United States. Then with with 1868, we have a

drafting process of Section 3, which Gerard read about to some length. We don't know exactly

why they chose the words they did that this precise wording sort of adopting these caucuses,

these private meetings that were not in the capital. But do you know if there were many different

approaches. Many different drafts. Some versions would have disenfranchised all former rebels.

Some approaches would have said, "All rebels cannot hold any office." But the ultimate wound

up it's something of a compromise. And the compromise said that certain people can't hold

certain positions, and they reach for language, and they reach for language from the oath clause.

In fact, Section 3 very closely tracks the oath clause.

[00:10:26] Josh Blackman: Now, you might say, "Wait a minute, Blackman and Tillman, that

sounds creative, but who said this in 1868?" So two points. First, we have not found any record

of anyone saying, in Section 3 debates, that the President is an officer of the United States.

There's actually some evidence to the other point that the presidency is in office under the United

States. Gerard found evidence to that fact. But we've not found anything saying the President is

in office to the United States, but there is evidence to the contrary. We recently filed an amicus

brief focusing on a Louisville Kentucky newspaper, and the Louisville Kentucky newspaper was

discussing some other issues and said "Oh, by the way, the President is not an Officer of the

United States." He points to the same evidence we do. He points to the Commission's clause. He

points the impeachment clause. He points to justice stories that the President is not an Officer of

the United States.

[00:11:11] Josh Blackman: So at least some people who are familiar with the topic, in 1868

said, "The President is not an Officer of the United States." This is a textual argument. And I'm-

I'm glad that Gerard agreed that you have to sort of go into purpose and intentions. Original

public meaning rejects that approach of jurisprudence in a recent case called Bostock, you might

recall, Justice Gorsuch said, "We don't care if the framers of the Civil Rights Act 64 want to

protect gays and lesbians. What matters is the work they chose within the work controls, law

controls and the President is not an Officer of the United States."

[00:11:44] Jeffrey Rosen: Well, let's turn now to the question of precedent. Gerard, as you

mentioned, there are two leading opinions on this case by a Supreme Court justice, both by Chief

Justice Salmon Chase and they point in opposite directions. Tell us about those two decisions

and what you think the Supreme Court should make of them.

[00:12:04] Gerard Magliocca: Right. The main case that will be discussed is called Griffin's

case. And this involved a habeas petition that was brought by a black defendant who was

convicted of a crime in Virginia under Military Reconstruction. And he brought a habeas petition

before Chief Justice Chase who was acting as a circuit justice in Virginia at the time, saying that

the state judge that had presided over his criminal trial was not an eligible judge because he was

someone who had served under the Confederacy and was subject to Section 3. So, Chief Justice

Chase rejected this petition. And in part he did so because he said that, "Well, there was no act of

Congress enforcing Section 3 at the time that this trial occurred, and that an act of Congress was

required to enforce Section 3."

[00:12:57] Gerard Magliocca: Okay, I have many objections to both the reasoning of this

opinion, which we can go into further, but that was what Griffin's case said. Now, at about the

same time the Chief Justice had been presiding over Jefferson Davis's treason trial in Virginia,

and one of Davis's arguments there was that he could not be prosecuted for treason because

Section 3 of the 14th Amendment applied to him and was the exclusive sanction that he was

being subjected to, so it precluded a treason prosecution. And the Chief Justice agreed with that

view, although because he was sitting in a circuit trial alongside another judge who disagreed,

the question was in effect certified for an appeal to the US Supreme Court.

[00:13:51] Gerard Magliocca: The idea there being, "Okay, in that Davis case, Davis's lawyers

argued that Section 3 of the 14th Amendment applied of its own force, no act of Congress was

required for Davis to invoke it as a defense in his trial." And the Chief Justice must have agreed

with that because he sided with Davis's position in that case, now that wasn't an opinion. Okay.

So in that sense, it's something one has to sort of construe rather than saying there are two

different opinions, but they are contradictory. There are explanations that have been given

unpersuasive to me that they can be reconciled. But more to the point, even if you can reconcile

them, it seems to me that at best, he was right in Davis, wrong in Griffin. That is, that actually

may be the first cut. Yeah, it is applying of its own force, was correct. And then Griffin got it

wrong in saying that an act of Congress was required, but there'll be plenty of room for

discussion of that when the court hears the case.

[00:14:58] Jeffrey Rosen: Josh, in your brief with Professor Tillman, you argued that the Chief

Justice's positions are consistent because he was holding that Section 3 may be used as a shield

but not a sword. Tell us more about that distinction.

[00:15:14] Josh Blackman: This is a point that's more of federal courts and about Section 3. But

the Constitution when we say it's self-executing really has two different meanings. So for

example, if the police prosecute you, and they decide to deny you some right, for example, they

try to admit evidence that was seized illegally, or perhaps they beat you in their custody, and

they're prosecuting you. You can always raise the Constitution as a defense that is, "The

government's prosecuting me for some crime, but in the course of this prosecution, you know,

they violate the 4th Amendment. They violate the 5th Amendment. They did something wrong."

You don't need any sort of federal legislation to raise the constitution of defense. Everyone

agrees about that.

[00:16:02] Josh Blackman: What if you want to go on the offense? That is, what if you wanna

seek some sort of affirmative relief against the government for violating the Constitution, you

need what's called the cause of action. And we have that, it was called Section 1983. There's a

statue that traces its roots to reconstruction. There was an act shortly after the 14th Amendment

was passed in various forms. And this says that if any state official deprives you of your rights

under the color of law, and you can go seek a remedy against that official. We've always had

section 1983. So we've never really had to think about this distinction, but it's been there for a

very long time.

[00:16:41] Josh Blackman: What happened in Davis's case and what happened to Chase's case

reflects this distinction. In the case of Jefferson Davis, it was a criminal prosecution. And Davis

made an argument that perhaps you might find strange, they said that Section 3 displaced any

possible treason prosecution. In other words, because Davis says, "I can't hold any sort of future

office. You can't prosecute for treason, that's the sole punishment." Now he might right, might be

wrong, but he's saying, "As a criminal prosecution a defense is you can't raise it." Whereas in

Griffin's case, it was what's called a habeas case. Who was Griffin? Gerard's written about this.

He was a man, a Black man who was charged with shooting someone else, he didn't kill them,

but he tried to shoot someone else, as it seems the guy almost got lynched for it. Right? He was

seeking habeas relief in federal court. And what Chase was saying is you need some sort of

statute in order to say that the judge who sentenced Griffin was disqualified.

[00:17:43] Josh Blackman: So these cases can be reconciled. There's a point a federal court's

not really a question of Section 3. I will just put you in some little bit of caution. We don't

exactly know what Chase said during the Jefferson Davis trial. Right. A- and this sort of gets into

the weeds, the director had two versions of the case have ever reported. One report in 1869,

where Chase said absolutely nothing about whether Section 3 requires federal legislation. And

there was another version of the case reported some years later, maybe even after Chase's death.

That said, "The Chief Justice told the reporter to put on the record that Section 3 executes its own

force." I caution slightly because the reporter of that case is not the most reliable person.

[00:18:27] Josh Blackman: Number one, he was actually the lawyer in Griffin's case, it's a bit

of a coincidence, but more importantly, he was a former Confederate General, who apparently

tried to kidnap Abraham Lincoln. He might have had an incentive to, perhaps, give Jefferson

Davis more credit than he was do. We don't know why that sentence was there. It was not

reported the time. But even if it's there, I think you can reconcile these based on a fairly deeply

rooted aspect of Federal Court jurisprudence.

[00:18:49] Jeffrey Rosen: Gerard, further thoughts on that distinction about Section 3 as a

sword, not a shield. And then, give us a sense of the history and original understanding of

Section 3 and enforcement. In your article about Section 3 amnesty, you note that after Griffin's

case, Congress passed the first Ku Klux Klan Act known as the Enforcement Act of 1870 to

protect voting rights guaranteed by the 15th Amendment. One of those sections which gives

federal prosecutors the right to bring warrants against state officials who obstructed Black voting

rights has been invoked by Jack Smith, the special prosecutor to charge President Trump with

fraud to deny voting rights. And the 1870 Act also said that people who didn't resign if they were

ineligible, we're guilty of a misdemeanor. What is that history, which is about the effort to

enforce Black voting rights through the Enforcement Act? Tell us about whether or not Section 3

is enforceable against President Trump without action from Congress.

[00:19:52] Gerard Magliocca: Okay, well, let me try to unpack that with three points. First, on

the question of sword versus shield, you know, Mr. Griffin was using Section 3 as a shield to try

to stay out of jail. So I don't think that the cases can be reconciled with that idea in mind because

Chief Justice Chase did not allow Mr. Griffin to use Section 3 to shield himself from President, it

was his defense basically, in his appeal of his criminal conviction. I guess I don't find that a

particular really good way to distinguish between those two cases. Okay, on enforcement. First

thing to note is that Congress immediately following ratification of the 14th Amendment, indeed,

even right before ratification was giving people amnesty. That is they were exercising their

power to, with a two-thirds vote in each House, to give people waivers under Section 3. That was

done before there was any federal enforcement legislation. It was also done in Virginia in 1868.

At the time when Justice Chase was saying that he needed an act of Congress to enforce Section

[00:21:03] Gerard Magliocca: So what were people getting waivers from? They were getting

waivers from a disqualification that Section 3 imposed upon them and that states could enforce

or the army could enforce, against them by removing them from office. So that tells us that an act

of Congress is not required for enforcement because they were giving waivers to people from

enforcement before any act of Congress was there to do the enforcing. Now, when Congress

passed the Enforcement Act in 1870, they had a civil remedy for enforcing Section 3 through a

quo warrant to action and a criminal remedy for people who were sort of willfully refusing to

leave office when they were ineligible.

[00:21:48] Gerard Magliocca: I think the main thing that that tells us is that you don't require a

con- or a criminal conviction is not required for disqualification. So one argument that's been

made by others is that, "Well, President Trump was not charged with insurrection. He's not been

convicted of insurrection, therefore, he can't be disqualified." So that's wrong because hardly

anybody was convicted of anything at the time related to their activities in the civil war. Yet they

were disqualified. And when Congress got around to doing an Enforcement Act, they provided

that it could be done civilly through a suit filed by a United States attorney to remove someone

from office. I think it just reinforces the point that this is a civil action. It's not a punishment. It's

simply saying you are not meeting the qualifications for office and that it can be enforced in the

absence of a criminal charge.

[00:22:49] Jeffrey Rosen: Josh, your response to the history just mentioned about why he thinks

that the history of enforcement under Section 3 suggests that the clause is indeed self-executing.

[00:22:58] Josh Blackman: Sure. Griffin was seeking what's called a collateral challenge that

he was convicted in a state court and he sought relief in a federal court that is that the judge who

presided over his trial is disqualified. That is affirmative relief. It was affirmative relief in 868.

And even today, you need federal legislation to seek habeas relief. You need some sort of

remedy to allow the courts to hear this. True, he was trying to stay out of jail, but this was

seeking for relief in a federal court. And it might be useful to walk through some landmark cases

that people perhaps don't fully understand. One of the first 14th Amendment cases was the

slaughterhouse cases, right. This is where a bunch of butchers, objected to a Louisiana law that

limited where you could slaughter animals.

[00:23:41] Josh Blackman: And they argue that it violates the privileges or immunities clause

to have this violation of rights and a living. What's not well known is that the butchers didn't sue

the government. Instead, this was an enforcement action by the Louisiana Attorney General

against the butchers. And they raised, as a defense, the prosecution. Wait a minute. This is a

shield, the 14th Amendment's a shield, you can't prosecute us because the privileges or

immunities clause provides a remedy.

[00:24:09] Josh Blackman: A case aside the very next day is Brad Hawkins, Illinois, very

infamous case where the court said that a woman has no constitutional right to be an attorney,

[inaudible 00:24:18] actually invoke enforce legislation. She cited by federal habeas corpus act

as sort of a weird claim. But she came to court not based on the 14th Amendment, but based on a

statute. Every other case you know about from Brown versus Board of Education on down

involves a federal legislation. The quo warranto statute, which is actually very useful, shortly

after Chief Justice Chase rose opinion, we've not seen any debates in Congress saying, "Oh,

Chase is wrong, Chase is wrong." Instead, they said, "Well, let's pass a statute." And in some

regards, maybe Congress responded to Griffin's case that, "Is it well?" Maybe Chase is right,

maybe Chase is wrong, but we should respond by creating this mechanism, this quo warranto

which is used to enforce Section 3.

[00:24:59] Josh Blackman: So even if Chase may not have been correct, and I think he was,

Griffin's case settled the matter. And for 150 years, people favorably sat at Griffin's case, it's

been cited all over the board, in federal courts and state courts. It's only until recently when some

good friends of mine decides otherwise, because we're questioning Griffin's case. Other than

liquidation, when you have this precedent that's so deeply entrenched, it becomes the law. I think

even in any event, the court should find, Griffin's case not binding, but highly persuasive of the

evidence as we understood in 1868.

[00:25:31] Jeffrey Rosen: Well, let's turn now to the question of whether or not January 6th was

an insurrection. How did the Colorado court and main Secretary of State find that it was and

what procedures do you think the Constitution requires for deciding whether or not something

was or wasn't an insurrection?

[00:25:51] Gerard Magliocca: Basically, we can understand an insurrection through a common

law approach primarily looking at cases that, before the Civil War, looking at other legal

authorities to understand that it basically involves the public use of violence by a group of people

that are attempting to hinder or prevent the execution of of the law. And then for Section 3

purposes, I would say, prevent the execution of the Constitution because the Constitution or oath

is referred to as well as the kind of Constitution itself in the text of Section 3. Now, the process

for determining that. Look, Section 3 doesn't tell us the answer to that. Everyone at the time

understood the Civil War to be an insurrection. So that issue didn't arise in the immediate

aftermath of the Civil War.

[00:26:45] Gerard Magliocca: Now, what do we have? We have the state election ballot

eligibility challenge process to evaluate that. And that varies from state to state. In Colorado, it

involved a bench trial that lasted for a week. In Maine, it involved an all day administrative

proceeding before the Secretary of State, and I understand now that essentially the appeal of that

decision has been put on hold now that the Supreme Court has granted certiorari. There is no

uniform process for that. That's too bad, but I don't think it means that there is a problem. One

has to look at the individual adjudications that have taken place and evaluate whether they're

consistent with due process and if so, then that is enough, at least for the purpose of the factual

findings that were made.

[00:27:39] Gerard Magliocca: I would add that the factual findings regarding January 6 also

drew quite a bit from the congressional report, right, which was a report of a house of Congress,

not just a state court. I think that that should give confidence in the factual findings. Now,

whether you then want to say that that means that therefore, Donald Trump engaged in

insurrection or that it was an insurrection, those are obviously legal questions that the court is

gonna have to review, de novo.

[00:28:12] Jeffrey Rosen: Josh, how do you think the court should rule if it decides those

questions de novo, was January 6, an insurrection? And like the history of using the law to

prosecute as insurrection forms of political protests that their defenders said were legitimate, give

the court pause as it tries to identify adequate procedures for deciding what insurrection an is.

[00:28:39] Josh Blackman: This is what I think Justice Frankfurter would've called thicket,

right. For starters, no one from January 6th has been charged with insurrection. Jack Smith,

who's not a shrinking violet, has charged people with seditious conspiracy, obstructing official

proceedings and so on. But no one is charged with insurrection to federal statute. The statute was

signed to law by President Lincoln in the midst of the Civil War. The second point I'll make is

we don't think you need a conviction under the insurrection statute to be disqualified by Section

3. We don't take that position. We think it'd be a very good indication that there was a

determination of insurrection.The third point is even if January 6th was an insurrection, you still

have to prove that Trump himself engaged in it.

[00:29:28] Josh Blackman: Now, this is undisputed, he didn't go to the Capitol, he didn't break

a window, he didn't knock over a flagpole and stab someone with this. He didn't put on a viking

helmet and start screaming at a speaker's desk. Right? He didn't do these things. He did give a

speech. There's a First Amendment issues there. He did issue some tweets in the weeks leading

up to the event. And he did, according to some, not take actions to stop the actions at the Capitol.

Right? We've written in our article, that is Seth and I, that whatever Trump did, does not amount

to engaging. He may have given aid and comfort, he may have supported it, but didn't personally

engage, and this is a specific intent crime.

[00:30:09] Josh Blackman: So if the court actually gets past the execution issue, and gets past

the office of the United States issue, perhaps one off ramp is to say that whatever happened on

January 6th, Trump didn't engage in it. But I am skeptical the court wants to do this. Why? You

can see where this leads, Jeff, your question hinted it. Where the various Black Lives Matter riots

and rallies in the summers of 2021 and 2020, where those insurrections was the occupation of a

city block in the state of Washington. The no go zone was at an insurrection.What will protest

the White House instruction that Donald Trump wants to vote insurrection act for. Whatever the

court says here with insurrection will come back to haunt it very, very quickly, which is why I

can't imagine the court affirms across the board. I think it's easy enough to say that no one has

been charges insurrection, not even the federal government thinks it was an insurrection. That's

good enough for us.

[00:31:05] Jeffrey Rosen: Gerard, further thoughts on that question of whether this is a

dangerous line to draw 'cause it risks calling political protests an insurrection. At the time of the

founding during both Fries' Rebellion and the Whiskey Rebellion. There were concerns that the

federal government was converting what John Adams called a riot into an insurrection. And one

reason Adams pardoned the Fries' Rebellion, rebels, including John Fries, was because he didn't

wanna criminalize political protest, which had been done on the Sedition Acts. Is there a danger

here and might that lead the court to require very high procedures for deciding whether or not

something's an insurrection?

[00:31:47] Gerard Magliocca: Well, I'm not sure it's so much a procedural question as a

substantive one, right? Now, I would distinguish between two things. One is the question of

whether January 6 was an insurrection. I don't think it's a close case on that point. Now, other

examples would be harder cases. But I don't think they have to really worry too much about that,

because this is such a core thing in terms of an attack on the national capitol to disrupt a peaceful

transfer of authority to the duly elected next administration. I think that's an easier one. On the

question of engagement, look, clearly, they're gonna talk about Brandenburg and First

Amendment cases, that argument. I mean, I think that's true. Not so much because it's a strong

argument, but because they're very familiar with the First Amendment. They deal with it all the

time. So I'm sure they're gonna be more comfortable addressing the case from that vantage point,

than they would be with some of these other issues we've just discussed, which are more

unfamiliar to them.

[00:32:47] Gerard Magliocca: Look, they will have to think about how Brandenburg, how the

First Amendment interacts with the 14th Amendment, first of all, because Section 3 is of course,

a modification of the First Amendment, number one. Number two, well, okay, what do you think

about the application of the Brandenburg standard, if that's the standard to be applied to what

Trump did and the facts that were found? I don't know that they're going to look to that first to

resolve the case. I'm sure they are gonna look to things that are a little cleaner, or simpler as at

least possible ways of resolving the case. I'm not really terribly concerned about the problems

that it's gonna pose because, to some degree, this is something where they- they've got a very

clear record before them.

[00:33:41] Gerard Magliocca: The slaughterhouse cases that Josh mentioned, that there's the

line about how the Civil War is kind of to reason to be called history but familiar to us all. And I

think that that's kind of true for January 6th, given that they are all there on near to the scene of

all of that occurring. And I think from that vantage point, they'll be able to confidently resolve

this if they get to those questions.

[00:34:11] Jeffrey Rosen: Josh, more thoughts, please, on whether or not President Trump

engaged in insurrection. As you say, none of the January sixth defendants have been so charged

and Congress, in its findings held that President Trump had assisted or aided the insurrection, but

not that he didn't engage in the insurrection. If the court did reach this question, how would they

take into account these facts? And might they hold that the Colorado court didn't apply a version

of the Brandenburg standard and require the findings to meet First Amendment standards? Tell

us more about how you would resolve office.

[00:34:51] Josh Blackman: Section 3 defines two offenses, number one, engaged in

insurrection or rebellion. Number two, given aid and comfort to the enemies. So there are two

specific offenses, engaged in insurrection, two, give an aid or comfort to enemies. Giving aid or

comfort is similar to, we might call accomplice liability or indirect liability, right, that you

helped the crime, you facilitated, you didn't engage in it yourself. Engage is a specific intent

crime. So I think the actions that are described in the January 6th report, maybe rise a little

giving aid and comfort to an insurrection, but that's not what the text says. It gives aid or comfort

to enemies, that is foreign people, foreign belligerent nations and not an issue here are engaging

insurrection.

[00:35:34] Josh Blackman: So I don't think Trump engaged in it. The harder question is

actually the First Amendment issue, the Brandenburg question. In fairness, Seth and I wrote

about this on January 7 of 2021. We flagged this issue right at the get go. And during the Trump

impeachment, we were viciously attacked, saying, "No, no, no. The First Amendment doesn't

apply in impeachment trials, doesn't matter what Brandenburg says," and we thought that was

wrong then. But here we are, we're in court and Brandenburg ought to apply. There's some irony,

the government's arguing that Trump's speech on January 6th was in his private capacity, not in

his governmental capacity. I agree with that. If Trump is speaking as a private citizen, he has a

full panoply of First Amendment rights.

[00:36:15] Josh Blackman: Brandenburg was a case that had some not so pleasant facts. You

had a Ku Klux Klan member who was ranting about having a march on Washington and doing

some awful things. He was basically charged with inciting violence, inciting a crime, but the

courts have done, "no, you can't prosecute him because the so-called criminal activity was in the

future. It wasn't imminent." And that's a key phrase, imminent. The Colorado Supreme Court

when they're applying Brandenburg said, "We will consider not only the speech, but also the

tweets leading up to it." A- and that's not clear and in fact, they've had some debates about this

issue. Brandenburg didn't squarely say that you can look to everything that came before to

determine context as I read it. "Let's look at this speech., and did this speech by itself incite

violence?"

[00:36:59] Josh Blackman: If you limit it just to speech, I think he's protected by Brandenburg.

Sure, he said, "Fight like hell." Bill said, "March peacefully." I think unbalanced is we protected

speech, and if it's protected speech it certainly can form the bases. Now, Gerard made a points

from offhand that Section 3, you know, modified the First Amendment. My goodness. There's a

point that Bowden Paulson made, "You need a serious theory of retroactivity to say that Section

3 implicitly repealed the First Amendment at least in part." A comment of a Landingham, who

was a member of Congress rabble rouser, he's from Ohio, but he opposed the Civil War. And he

engaged in free speech and there's some evidence his speech was protected. If there's some

argument that the First Amendment's repealed, it might have been discussing with the

Landingham proceedings, it wasn't. So, I'm gonna be very hesitant to say that the 14th

Amendment repeals the First Amendment implicitly, I think that's a very tricky and risky

argument to make.

[00:37:54] Jeffrey Rosen: Another beat on how the US Supreme Court might resolve this

question. Would it be plausible for a civil libertarian justice to hold that the Brandenburg

standard applies, that you can't be held liable for engaging in his direction under Section 3 for

protected speech and therefore, that the Colorado Supreme Court was wrong to disqualify him

and- and what are the procedures for taking account of these First Amendment arguments in the

course of a Section 3 proceeding?

[00:38:21] Gerard Magliocca: I don't think that Section 3 repealed the First Amendment. I just

said that it modified it just as it modified all of the prior constitutional amendments are in the

sense of mending what came before. Secondly, Brandenburg is a criminal case. Right? And of

course, we think about sort of sending someone to prison for their speech. That's a very, very

serious matter and there should be a very high standard to do that. Here, we are not sending

Donald Trump to prison, in this- in this proceeding. We are looking simply to say whether he's

disqualified from serving as president again. So the same kinds of concerns that are behind

Brandenburg don't quite work in this context. Now, that said, that doesn't mean you necessarily

need to throw out the Brandenburg standard. It could simply be to understand it filtered through

Section 3 and the fact that it's a civil proceeding and a civil remedy rather than a criminal one.

[00:39:20] Gerard Magliocca: Beyond that, I wasn't there on January 6th, right. So I mean, I'm

a little hesitant to sort of offer a direct opinion about what happened and what didn't happen. I

think that the Colorado Supreme Court's analysis of that was- was sound. And I don't know that

that's going to be the thing that's going to trouble the court the most. I mean, I would say that,

you know, because the First Amendment is a more familiar terrain for them. I would be sort of

thinking that they will spend a good deal of the argument talking about the issues that Josh has

flagged, because I just think that's more in your wheelhouse, to put it a certain way.

[00:40:11] Gerard Magliocca: Do I think that that is something that should lead to a finding

that Trump did not engage in insurrection? No, no, I don't. And I do think, by the way, the

specific intent was satisfied. The Trial Court pointed to the fact not only things that occurred

before the speech on January 6, but also the things that occurred afterwards, namely the lack of

action once the violence began for several hours to prevent the violence from continuing and that

that was evidence of intent. So I think that standard was satisfied based on the factual findings

made.

[00:40:51] Jeffrey Rosen: Josh, Mike the Judge says, examine who should make this decision,

state election officials, state courts or whether it's a determination that only the US Supreme

Court can make. And it doesn't make sense to have different states come to different conclusions

about whether or not a President Trump engaged in insurrection, which is the US Supreme Court

if it gets to this question have to decide it for the whole country.

[00:41:17] Josh Blackman: Right. Putting aside the question about self-execution, if we are

electing a president on a national vote, and all 50 seats impose different procedures before

disqualifying the president, we are in a very, very dangerous place. So just to draw a contrast,

the Colorado trial court that you're testified in, held a full hearing for a week, it was a pretty

elaborate proceeding. In Maine, you had an elected partisan Secretary of State who has tweeted

critically of Trump before, had a hearing that lasted just about a day. Because, Colorado said,

right, and you might imagine other states have even less process. So for better or worse, this case

comes to Supreme Court now with a full record on which the court can rule. And whatever the

court does here, I hope and pray that the court resolves authoritatively.

[00:42:10] Josh Blackman: Seth and I make this point in our brief, we think the self-execution

point is correct. And the court rules on self-execution grounds and all the state litigation ends.

But Jeff, this doesn't end the crisis. Right. Why? January 6, 2025, we have a joint session of

Congress. And it could be that a Congress with a democratic vote says, "We will determine that

Trump is not qualified. And any electoral votes for Donald Trump were not given in a regular

fashion." That's the statute it uses, regularly given. And you can imagine they disqualify Trump,

which actually isn't clear, we either make that the Republican vice president becomes president

because no President qualified, or you can have what's called a contingency election, where

Biden move and Joe Manchin can become president, crazy things can happen.

[00:42:59] Josh Blackman: I saw a recent poll that said 80% of Democrats think Trump should

not be qualified. So if the Supreme Court kicks this case in any sort of procedural grounds, it just

leaves chaos for a year that if Trump wins the nomination, which looks pretty likely, if Trump

wins the general election, which is possible, the polls show he might, then we could have a

democratic control Congress. We know for the sake of the Republic, we do not want Trump to

be president. And I don't know that an appeal could lie from the joint session of Congress, the

Supreme Court. I'm not sure, maybe it can, maybe it can't, I don't know. But it will be absolute

chaos, if that happens. So I hope that whatever the court does, they resolve this issue on the

merits, say that, "The President is not an officer of the United States. The presidency is not in

office." There was no insurrection, there's a Brandenburg defense, right?

[00:43:43] Josh Blackman: Maybe the liberals would have that argued appeal to them.

Something. Don't actually rule on self-execution. Don't rule that, "Oh, this only kicks in when

the President holds office. Oh, don't do it now. There's a brief by Republican Senate committee."

Rule the issue or give Gerard what he's looking for and say, "Knock them off the ballot." Right.

Own your decision now. Do it now and let the people, you know, pick a different candidate. But

a middle ground which something that, I know the chief often likes, I think will be very, very

dangerous here and I don't think it'll be appealing to the court.

[00:44:18] Jeffrey Rosen: Well, the middle ground brings us to the sixth of the issues that

Gerard identified at the beginning of the show. Is Section 3 justiciable? The Supreme Court has,

in a series of cases, held there is a political question doctrine that says that when a decision is

texturally committed to another branch of government, and when it raises pragmatic or

prudential considerations, like calling the court's legitimacy into question or risking chaos, then

judges should refuse to decide it at all. Gerard, tell us about what the argument is, in this case

about whether or not this is a political question. What do you think some justices might accept

that argument?

[00:45:03] Gerard Magliocca: Well, I'm worried that they might, and for the reasons, largely

that Josh has stated. So, the inclination not to decide this case might lead them to say, "Hey, why

don't you come back to us after the Republican convention if Trump is the nominee? Or, why

don't you come back to us after November if Trump wins because maybe neither of those things

or one of those things won't happen?" Now, one way they could get to that which we haven't

discussed so far is the argument that, "Well, maybe you can't hold office under Section 3, but

you can run for office." So the running part, you have to let everybody run. And so then you can't

really resolve it until the election is over. Now, I can understand why somebody might find that

appealing. But if we had not had January 6th 2021, we might say, "Well, hey, let the joint session

do it. That seems fine. That's something that 12th Amendment seems to contemplate," and so on.

[00:46:01] Gerard Magliocca: But now, we've seen it in action once and we've seen how bad

that can become and it would be worse the next time. So to say, "Either it's a political question,

only Congress can decide in, in the joint session." Or to say, "Look, we can't do anything about it

until after the election. So there's like this very narrow time window between November and

January that where this will all get resolved somehow, or else a joint session has to resolve it."

Those are both alternatives that are gonna be very unattractive because of what occurred on

January 6 of 2021.

[00:46:42] Gerard Magliocca: There is a plausible argument for the kind of idea of, "You can

run for office, but you can't hold office." I just think that's unworkable and looks very different,

frankly now than it would have looked in 2019, if we had been having this conversation. I

certainly hope that they won't do that. And I would add that I hope that you don't get a situation

even where say there's just a concurring opinion that forms the fifth vote that says that. Because

you could just have one or two of them saying that and that might lead to us all being back here

in November, or December or whatever, kind of discussing this all over again. I just think that

that's not where we need to go. We need to have this resolved now.

[00:47:33] Jeffrey Rosen: And it's significant that both of you agree that the court should

resolve this substantively one way or the other and not kick it down the road. Josh, talk us

through the options if President Trump wins the nomination and this goes to the Congress to

count the electoral votes. What is the electoral Count Act say about raising objections and don't

the House and Senate both have to agree to disqualify someone? And since they're in different

hands, wouldn't that mean that he would not be disqualified in the counting or how could this

play out?

[00:48:05] Josh Blackman: It's going to be wild, as they say. The Electoral Count Act was

modified in the last year or so. And there's a key phrase, objections can be raised if a vote is not

regularly given. That's a key word, regularly given. It used to be that if one senator and one

representative raise objection, that's enough. Now the threshold is higher. If a fifth of each House

objects to a vote, then the joint session breaks up and they each go to their respective Houses.

And they vote and if a majority of each House rejects electoral vote, then the votes not counted.

And if a majority of the House and majority of the Senate decides that Trump's not disqualified,

they can vote to reject every single electoral vote in favor of Trump. Now, what happens then?

Again, I don't know. One or two things can happen. One, they can say that, "Well, the President

is not qualified. So maybe the Republican vice president takes office." Or two, if no candidate

receives a majority of electoral votes, then they can have what's called a contingency election in

which some of the top three could actually be elected and Trump's not it, could be Biden, maybe

Joe Manchin, who if he gets a single electoral vote somewhere which, you know, I don't think he

will, but he could. Maybe win West Virginia. I don't know.

[00:49:27] Josh Blackman: Then we have just absolute insanity. If you think there were

allegations at the 2020 elections about stopping the steal, which again, I think is nonsense. This

is my view by substantial majority of Americans as stealing their votes. And even if it doesn't

happen, the specter of it happening, the threat of it happening, I think will be destabilizing ways

that we carefully understand. So I was kind of shocked to see that the Republicans, Senate

committee said "Don't decide this now, wait till he actually gets elected then decide it." That’s

just playing with a loaded gun to Court Justice Jackson, right. The courts resolve this now.

Whatever it is, give us a ruling, authoritative resolution and let us move on with our lives.

Gerard and I, we're getting older in our old age. We can't do this another year. All this much hair

is dry by the time we're done, if that's we got another year.

[00:50:20] Jeffrey Rosen: Ah, well, it will give us a lot to podcast about, no- no- no question

about that. Gerard, since the House the Senate have to agree to disqualify a candidate under

Section 3, isn't President Trump' safe if he wins the Electoral College, since the House will vote

to disqualify him? And take us through the various scenarios that might occur if the Supreme

Court kicks this down the road.

[00:50:43] Gerard Magliocca: Well, first of all, he wouldn't necessarily be safe because we

don't know what the Congress will look like in January, depends on how the congressional

elections go this fall. So who's to know? Second is, I can imagine, I guess in that scenario that,

the day after Inauguration Day, there would be a whole lot of lawsuits filed trying to say in some

sense, "Donald Trump's not the real president. So whatever he did, it's not lawful." And that will,

either be a nuisance or cause real problems. Just depending on what that's about and how

seriously people take it.

[00:51:20] Gerard Magliocca: One scenario I was trying to think through and I'm not sure I

have a good answer to this is, okay, for example, suppose you were to say, "Well, he can run for

office, he can't hold office." So when exactly can someone then bring a court challenge, right? Is

it like, the day after election day when they're gonna bring some contest in a state that says, "He

didn't really win Florida because he's not eligible?" Is it like after the electors have voted and

then somehow you're gonna challenge what they did in a couple of weeks, you know, between

the electors meeting and the joint session meeting? I'm not really sure how that would work.

[00:52:04] Gerard Magliocca: One possibility, I guess is you just have election contests being

filed the day after election if he wins, saying, "Okay, he didn't really win my state." And then, I

don't know, that has to get kicked up somehow to the Supreme Court, or to a state Supreme

Court. It's just something we can't really handle. I mean, I think that's the basic problem. It's not

like Bush versus Gore, where sometimes elections are very close and you have to have recounts,

and it's too bad but you just got to do the best you can to resolve it. This is not that kind of

situation. I just don't think the system can really take it on without some very bad ramifications.

[00:52:57] Jeffrey Rosen: Josh, more thoughts on this case, compared to Bush v. Gore. In Bush

v. Gore, the court, famously or notoriously, reached a decision on pragmatic grounds that it was

more important to avoid chaos of unextended recount than to follow the text and original

understanding of the Constitution and came up with a previously unrecognized right of non-

arbitrary treatment of voters to stop the recount. Gerard has just said that the case for chaos is

much higher in this case than it was Bush v. Gore. Do you believe as a result that for pragmatic

and prudential as well as textureless reasons, the court should rule definitively here? Help us

distinguish this case from Bush v. Gore.

[00:53:41] Josh Blackman: Bush v. Gore sort of came out of nowhere, right? In the span of a

few weeks, entire strands of constitutional doctrine were sort of just made up on the fly. It was

not the courts' best work. In fact, in Morgan's Harper last term, the courts sort of clean up some

of the vestiges from Bush against Gore. The insurrection case is a little bit different, right? You

know, there's not a lot of scholarship on it, but Gerard's written on it. I've written about it. Kurt

Lash also, Tillman, Bowden Paulson, a few others have written on it. And I think all these should

have been vetted. I know Gerard's position. He knows mine. Then, we to argue each other's

position right with their- their eyes closed. So we have pretty good arguments, I think, on both

sides of the court once ruled one way or the other.

[00:54:27] Josh Blackman: But the chaos argument, I think, counsels in favor of some sort of

definitive ruling one way or the other. We're not just talking about a couple of hanging chads in

Boca Raton which is where my grandparents lives, right? We're talking about a national election

where the candidate can't be written in. I mean, Trump has had a hard word to write if we can

write into word Trump. You can't even write the guy's name on the ballot if you want to. So the

court has a lot on its plate. I think Gerard made this point earlier. Will the arguments go six

hours? Instead of granting on maybe six or seven questions presented, they just said one. Is he

disqualified? My goodness.

[00:55:05] Josh Blackman: So there'll be a free for all and we'll see what happens there. I think

there might be some wrangling or arguing. We'll see about that. Let's get a ruling. I don't think

we're at the stage where the Supreme Court says, "Trump is off the ballot," and then people, you

know, reject the Supreme Court, put him on the ballot. Conversely, if the Supreme Court says

Trump could be on the ballot, I hope and pray that the Democrats in Congress say, "You know

what, we're going to follow the Supreme Court." Democrats say, "You know what, Mr. Roberts,

you made your ruling go enforce it. We're gonna disqualify Trump."

[00:55:35] Josh Blackman: You wanna talk about a constitutional crisis if that phrase is one.

The Supreme Court says that Trump is not disqualified, and the joint session of Congress says,

"He is disqualified." And then we have litigation about this. You know, for all the talks about

legitimacy and Justice Thomas's RV and everything else, this is an actual crisis. This is

something we really have to be worried about. So I hope whatever the court does that President

Biden says, "Okay." and we do what Al Gore did, accept the court's ruling and move on. It'd be

nice for the court has unanimous ruling. I think that would be helpful. In fact, I think my officer

position can garner nine votes, it won't upset any applecarts. The self-execution argument is

harder because there's some pretty strong positions and what the 14th Amendment means, and

whether you need legislation. I think opposition can get nine votes and we'll see what happens.

[00:56:24] Jeffrey Rosen: Well, it's time for closing thoughts in this really illuminating and an

important discussion. Gerard, in a paragraph, how should the US Supreme Court resolve this

case? Walk us through the various arguments and how the court should resolve it?

[00:56:39] Gerard Magliocca: Well, the Supreme Court should affirm the Colorado Supreme

Court. If you go through the list of issues that I outlined at the beginning. If you go through and

tick them off one by one. The answer on each of them is that Section 3 is satisfied in relation to

what Donald Trump did. You get to the end, and that means you have to follow the logic of that

to its conclusion. Now, the conclusion, "It's a big deal. It's unprecedented for a presidential

candidate." That's all true. But I think when you work through the details and the facts of the

case, it becomes a more compelling conclusion than if you simply just look at it and say, "Oh,

how can the Supreme Court take someone off the ballot like that?"

[00:57:23] Gerard Magliocca: And my hope is that through programs like this and other things

that will come along in the next month, people will become more and more aware of the issues.

And look, they're gonna reach their own conclusions. I mean, I don't know that the Supreme

Court is gonna be unanimous on this. It's hard for me to see that happening. But they should take

the step that the Colorado Supreme Court did and follow what was, I think, a well reasoned

opinion.

[00:57:53] Jeffrey Rosen: And Josh, last word in this important discussion is to you in a

paragraph, how should the US Supreme Court decide this case?

[00:58:02] Gerard Magliocca: The opposite of what Gerard said. I'm mostly joking. I think this

case is hard. Right? I'm not gonna come out here and say that this is a slam dunk for/or against

Trump. I think there's some really difficult questions. But the interpretive principle sort of was

been guiding me throughout this process is when you have a provision that limits the franchise,

you have a provision that says that you can't vote for the candidate of your choice, it should be

interpreted with an eye towards democracy, right, to letting people pick their leaders. I know

many people don't like Trump, that's fine. Right? But if the American people decide to make

Donald Trump president, then we get the country we deserve. Right? That’s what we get. And I

think the Supreme Court will not stand in the way of that happening. And Trump has to run the

tables from every possible issue. If I'm even right about one of my issues, then this case is over.

And I suspect one of those issues will be grounds for resolving this dispute.

[00:58:58] Jeffrey Rosen: Gerard Magliocca and Josh Blackman for educating We the People,

listeners and the people of the United States about the urgently important constitutional stakes of

this case. Thank you so much.

[00:59:11] Josh Blackman: Thank you.

[00:59:11] Gerard Magliocca: Thank you, Jeff.

[00:59:15] Jeffrey Rosen: Today's episode was produced by Lana Ulrich, Bill Pollack and

Samson Mostashari, was engineered by Bill Pollock. Research was provided by Samson

Mostashari, Cooper Smith and Yara Daraiseh. Please recommend the show to friends, colleagues

or anyone anywhere who is eager for a weekly dose of constitutional illumination and debate.

National Constitution Center is a private nonprofit. We rely on the generosity, the passion, the

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People. On behalf of the National Constitution Center. I'm Jeffrey Rosen.