February 9, 2024 • 50 mins
On this episode of The Middle, we're asking: Should Donald Trump be ineligible for the 2024 presidential ballot? Jeremy is joined by Major Garrett, Chief Washington correspondent for CBS News and Vikram Amar, a professor of law at the University of California Davis and former dean of the University of Illinois College of Law. The Middle's house DJ Tolliver joins as well, plus callers from around the country.
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Episode Transcript
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Speaker 1 (00:05):
Welcome to the Middle. I'm Jeremy Hobson along here with
our house. DJ Tolliver, Hi Tolliver.
Speaker 2 (00:09):
Hey Jeremy, so great to be here. Hey, we've got
new listeners.
Speaker 1 (00:12):
We have new listeners again this week at WVIK in
the quad cities on the Mississippi River. Those quad cities Moulin, Davenport, Bettendorff,
and Rock Island, all of in our audience now. So
this is the first Supreme Court focused episode of the
Middle because the High Court has put itself right in
the center of the presidential election. The Justice has heard
(00:35):
oral arguments in a case about whether Donald Trump can
be removed from the presidential ballot. The Colorado Supreme Court
ruled in December that Trump engaged in insurrection on January sixth,
twenty twenty one, and is therefore not eligible to hold
office because of the Fourteenth Amendment to the Constitution. That
amendment was ratified right after the Civil War. Former President
(00:56):
Trump appealed the case to the US Supreme Court. And
listen to this. Here's a from the hearing, Justice Elena
Kagan questioning the plaintiff, attorney Jason Murray, about the idea
of one state Colorado in this case, deciding who's on
the ballot in a presidential race.
Speaker 3 (01:11):
What's a state doing deciding who other citizens get to
vote for for president?
Speaker 4 (01:17):
Colorado is not deciding who other states get to vote
for for president. It's deciding how to assign its own
electors under its Article two power, and the Constitution grants
them not.
Speaker 5 (01:26):
But the effect of that is obvious.
Speaker 4 (01:28):
Yes, no, your honor, Because different states can have different procedures.
Some states may allow insurrectionists to be on the ballot.
Speaker 1 (01:36):
So we want to know what you think. I know
there was a lot of great moments this morning. We
want to know what you think should former President Trump
be removed from the twenty twenty four ballot? Our number
eight four four four middle. That's eight four four four
six four three three five three. We'll get to your
calls in a moment, but first, last week we asked
whether you think TikTok should be banned. Tolliver says no,
(02:00):
Some of you said yes. Here are some of the
voicemails that came in after the show.
Speaker 6 (02:04):
Him Emily calling from Bloomington, Indiana. My name is Laura
Mitchell and I'm calling from Nashville, Tennessee.
Speaker 7 (02:10):
Hi, My name is David.
Speaker 8 (02:11):
I'm calling from Los Angeles.
Speaker 7 (02:13):
HI.
Speaker 9 (02:13):
This is Mark from Houston, Texas. I see TikTok as
the democratization of news, meaning that it's not controlled by
privately held news companies.
Speaker 10 (02:23):
I wanted to say that I think that people are
just going to give up on TikTok anyway, so I
don't even think the question really will super matter.
Speaker 6 (02:30):
I do think that TikTok should be banned. I saw
it and how it affected my daughter. It has an
incredible influence on kids. It controls them. My daughter actually
told said to me at one point that if I
took it away from her, she was going to kill herself.
And I had the hardest time getting her to stop
(02:51):
watching it. I'm a comedian and so I need TikTok.
Speaker 11 (02:55):
For my success.
Speaker 2 (02:56):
But it's a horrible app aside from the security reason.
Speaker 12 (03:00):
So if it got and I'd be like, that's fine, good.
Speaker 7 (03:03):
Reading, you know.
Speaker 1 (03:04):
I was surprised how many people said they made their
living on TikTok, not just influence. There's a lot of people.
So this hour we're asking should Donald Trump be disqualified
from running for president again because of January sixth. Let's
meet our panel. Major Garrett, chief Washington correspondent for CBS
News and co author of The Big Truth, Upholding Democracy
in the Age of the Big Lie. He anchored live
coverage of today's oral Arguments for CBS News. Major Garrett
(03:27):
Welcome to the Middle, Jeremy.
Speaker 5 (03:29):
It's great to be with you. And can I say
hello a special hello to Moline.
Speaker 1 (03:33):
Yeah, that's the one of the quad cities that you
want to say hello to.
Speaker 5 (03:37):
Okay, I want to say a special hello to Moline.
My sainted mother, who died in twenty fourteen, was born
and raised in Moline, Illinois. Wow, and today would have
been her today would have if she was still with us,
it would have been her ninety first birthday today, February amazing.
So everyone in moleene, I love you.
Speaker 1 (03:56):
All right, Well, let's meet our other panel guest, Victor Amar,
professor of law at University of California Davis and former
dean of the University of Illinois College of Law. He
joins us from the Middle World headquarters in Urbana, Illinois.
Vicker Mamar, welcome to the Middle.
Speaker 13 (04:09):
Thank you for having me and love the place. So
I'm with Major on that one.
Speaker 1 (04:15):
Okay, all right, we got that out of the way.
Let me ask you before we get to the phones,
and they are lighting up right now. But Major Garrett,
there are a lot of people on both sides of
the political spectrum who don't think for one second that
this Supreme Court is going to rule against Donald Trump
on this. In fact, after the oral arguments, it looks
like even maybe some of the liberal members of the
Court might rule in Trump's favor. Is there any suspense
(04:37):
from your point of.
Speaker 5 (04:37):
View, not really. As you mentioned, I anchored all of
our coverage on CBS News streaming today. We had several
legal experts on I talked to lawyers later on today
about this who listened to the arguments in totality, and
what they detected was an emerging consensus on the court
to not uphold the Colorado Supreme Court decision to take
(05:01):
former President Trump off the primary ballot in Colorado, and
not necessarily on pure constitutional grounds, although there was some
reason to cite the Constitution in order to get there,
there was a much greater consensus that emerged through questioning
of all the various attorneys before the court about the
(05:22):
practical difficulties that would ensue that would follow if in fact,
the Supreme Court said yes, Colorado. There was a trial,
and the trial proceeding led the Supreme Court of Colorado
to conclude on a four to three vote that former
(05:42):
President Trump engaged in insurrection and therefore was disqualified under
the Fourteenth Amendment Section three. The emerging consensus through the
questions was, you know that is going to create confusion, doubts,
and practical difficulties for an already fraught political space in
(06:07):
twenty twenty four. And you could tell that the Supreme
Court simply did not want to be the arbiter that
set those difficulties practical and otherwise in motion.
Speaker 1 (06:17):
Vikamar, you actually co authored a Friend of the Court
brief in this case. You think this is pretty clear
cut that the Fourteenth Amendment is applicable here. Do you
think there's a question about which way the court will go?
Speaker 13 (06:30):
Well, it's sometimes diceye to predict outcomes based on oral argument,
but I think I agree with Garrett from everything that
I've read. I didn't listen to the entire argument yet.
I was teaching a class this morning, but it seems
that there are a majority of justices who want to
coalesce around some arguments They're not necessarily the best analytic
or historical arguments, but they seem to have some traction
(06:53):
at the court. I want to go back to the
first clip that you aired, though, because I think that's
where the Court is off on the wrong foot. Justice
Kagan was wrong, and that the lawyer for the challengers
was right that this case is not about what is
going to happen in every state. It's about what Colorado
is allowed to do. Just because Colorado can decide to
(07:16):
exclude someone from the ballot doesn't mean other states have
to reach that same conclusion. I would have put it
a little differently than the lawyer. I wouldn't have said
other states can allow insurrectionists. I would have said other
states can have different processes for determining whether someone is
an insurrectionist and come out differently on that question. I
want to just read one little passage from an article
I read on CNN today because Chief Justice John Roberts,
(07:38):
who's usually just whip smart, a really bright guy, he
said something that really struck me as not very sophisticated.
So the CNN article says the courts ruling would have
implications for other states where challenges to Trump's eligibility or pending.
But the fallout from a rule against Trump, Roberts said,
could be even wider if Trump is removed from the
ballot in Colorado. Roberts predicted that states would have been
(08:00):
attempt to knock other candidates out in future elections that
he said would seem to be inconsistent. He said, quote,
it'll come down to just a handful of states that
are going to decide the presidential election. That's a pretty
daunting consequence. Welcome to the Electoral College. It's always that's
the way it is.
Speaker 1 (08:17):
Let's get to the funds because they are lighting up.
Harry is joining us from Missouri City, Texas. Harry, Welcome
to the middle. What do you think should Trump be
allowed on the ballot this fall?
Speaker 7 (08:30):
Hello? Can you hear me?
Speaker 8 (08:31):
Yep?
Speaker 1 (08:32):
I can hear you?
Speaker 7 (08:32):
Go ahead, Okay, Hello, I don't think Donald Trump should
be allowed on the ballot. I think like you, Las
was and hello to the panel. I think that lawyer
was correct. I think Kagan Elaine Tagan was wrong. I
think Kagan, Alito, Thomas Kavanaugh, Gorsage and Roberts will probably
(08:54):
vote to keep him on the ballot because he put
three of those people there, and they feel that they
want they have an allegiance to him, and they like
his conservative views and they want him back in the
White House. Those other three liberals, I think they'll probably
do the right thing. They'll look at the fact that
he violated the constitution. He caused an insurrection, and as
(09:15):
the fourteenth Amendment clearly states, when you violate the Constitution
and you cause an insurrection, you should not be allowed
to whole office again. And I just think Kagan would
have just looked for any other excuse. If say, all
the other states and on beautiful country decided that he
should be taken off the ballot, she would have still
said that, Well, I don't think the states should be
(09:36):
deciding who should run for president because her allegiance is
to Donald Trump and it doesn't matter what he did.
Those conservatives feel that he can do no wrong. Their
allegiance is to him, and then I just don't know
if I trust them to do the right thing and
follow the constitutional law.
Speaker 1 (09:54):
Well, and just to remind our listeners, Elena Kagan was
actually nominated by President Obama. But major what about what
Harry just brought up there that three of the justices
on the Court Cavanaugh and who am I forgetting?
Speaker 5 (10:09):
Amy Cony Barrett and Amy Coney.
Speaker 1 (10:10):
Barrett all were nominated by Donald Trump. Whose future is
at stake here?
Speaker 5 (10:15):
Yes, absolutely, And in a couple of instances, it was
noteworthy during oral arguments that Judge Associate Justice Gorsuch, Associate
Justice Kavanaugh, and to a lesser extent, Associate Justice Barrett
asked what I think some might regard as leading questions
of the former president's main attorney, John Mitchell, questions that
(10:39):
went along the lines of well, this and this and this,
don't you agree or isn't that a problematic thing from
your point of view? And the Trump attorney was like, yes,
you're right, Justice so and so. So there was that
atmospheric that played along. But look to the caller's point,
I would just say, look at the transcript or listen
to the recording of the oral arguments. Justice Katanji Brown
(11:03):
Jackson asked questions that were sympathetic to some of the
orientations of John Mitchell, the former president's attorney, as did
Sonya Sotomayor. It was not one of these instances where
there was one lone dissident quote unquote liberal justice citing
or at least sympathizing intellectually or constitutionally with the former
(11:26):
president's attorney's arguments.
Speaker 1 (11:28):
You know, Toliver. A lot of people have been bringing
up another Supreme Court case involving a presidential election, one
that happened back in the year two thousand.
Speaker 2 (11:35):
I remember it well. I was a freshman in high
school when the Supreme Court heard Bush Vigor. My votes
were still being kind of in a Florida. The justices
essentially delivered the election to George W.
Speaker 7 (11:44):
Bush.
Speaker 2 (11:45):
Here's former Vice President Al Gore, conceding the election after
the ruling.
Speaker 14 (11:49):
Let there be no doubt. While I strongly disagree with
the Court's decision, I accept it. I accept the finality
of this outcome, which will be ratified next month in
the Electoral College and tonight. For the sake of our
unity as of people and the strength of our democracy,
I offer my concession.
Speaker 1 (12:08):
A concession, by the way, is one thing that Donald
Trump has yet to offer since he lost the election
in twenty twenty. Spicy, Spicy, we will be right back
with more of the middle. This is the middle. I'm
Jeremy Hobson. If you're just tuning in the middle as
a national call in show. We're focused on elevating voices
from the middle geographically, politically, and philosophically, or maybe you
(12:30):
just want to meet in the middle. This hour, we're
asking do you think Donald Trump should be removed from
the twenty twenty four presidential ballot. Whether you do or
you don't, we want to hear from you.
Speaker 2 (12:41):
Absolutely give us a call right now at eight four
four four Middle. That's eight four four four six four
three three five three. You can also write to us
that listen to the Middle dot com or on social media.
Speaker 1 (12:51):
I'm joined by Major Garrett, chief Washington correspondent for CBS News,
and Vick Amar, a constitutional scholar and professor of law
at UC Davis. Before we get back to the phone,
Major Garrett, how much do you think the Supreme Court
thinks about what the public reaction would be if they
were to rule one way or the other.
Speaker 5 (13:10):
I can't give you a definitive answer on that, but
I can glean inferences, I think fairly from the oral arguments.
And it was a consideration, not the pre eminent consideration,
but clearly the Court was asking questions about how the
country at large would not not only deal with the
(13:30):
possibility of affirming Colorado's decision, therefore signaling to other states
that you are greenlighted to make similar appraisals of Donald
Trump's qualifications on your own ballot. But they wanted to,
through their questioning, try to have everyone grapple with not
only from their point of view, chaos or instability or
(13:52):
uncertainty that would sow, but also related to that, the
blowback they would fall upon the Supreme Court. Now, of course,
as our distinguished professor knows, that's not supposed to be
a leading or even near leading consideration for the Court.
It should be what the Constitution says, what precedent applies,
and what any other facts of the case assert.
Speaker 1 (14:15):
What about that, vickemar that. I mean, how much can
the court think about politics and about public reaction to
their decisions.
Speaker 13 (14:23):
Well, you know, the Court, it has said, lacks the
power of the purse and the power of the sword,
so its influence is based on the people's acceptance of
its rulings. So it's only natural that over time the
Court tries to preserve its political capital, so to speak.
That doesn't mean that justices should ever act in a
truly partisan way. But I want to go back you
know Tolliver invoked Bush versus Gore, I think quite rightly.
(14:46):
But and Bush versus Gore I think was wrong legally,
And I think it looks like the Court might do
some legally wrong things today or in this case too,
Maybe because the lawyers didn't do a great job, or
because there wasn't enough time to really dig in and
read all the briefs, or because the justices themselves aren't
experts in this stuff. But I think the Court is
going to avoid a big mistake they made in Bush
(15:07):
versus Gore, and that is decide the case on partisan grounds.
Bush versus Gore was particularly problematic because it was Democratic
appointees ruling for Gore and Republican appointees ruling for Bush.
It seems as a major pointed out that there's going
to be consensus, and you, Jeremy pointed out across the
partisan aisle, which is at least better in that important respect.
Speaker 1 (15:31):
Let's get to the phones, and Ryan is with us
from Philadelphia. Ryan, go ahead, welcome to the middle.
Speaker 8 (15:38):
Hi, thanks for having me on. I would just like
to say, first off, I agree with the General that
I think the Court should be focusing more on the
legality rather than the effect of whether he should be
on the ballot. But I think I personally would like
to see a criminal trial regarding the treason if that's
going to be a reason to disqualify him from the ballot.
(16:01):
I know we had the impeachment trial and everything, but
you know those are inherently very politically motivated in terms
of the ruling. So I think if we and now
that the ruling came down that he has to be
tried as citizen Trump, that he doesn't have that natural
immunity from being president, and I think it's it's worth
maybe trying to do a criminal trial and then possibly
disqualifying him if he's found guilty criminally.
Speaker 1 (16:23):
Right, Thanks for that, Colin, Thanks for provoting Major to General.
By the way, Major is his name is life.
Speaker 5 (16:32):
Only?
Speaker 1 (16:33):
Okay? But but Major Garrett, what about that? That that was?
That was actually one of the things I thought would
come up in the in the oral arguments, and it
really didn't, which is did not doesn't It doesn't that
the president have to get on trial in order for
this to write exactly.
Speaker 5 (16:45):
Anyone who tuned in this morning saying, oh, I'm dear,
there's going to be a meaty argument over the insurrection
definition by the Supreme Court. I can't wait. Will you
be solely disappointed? They barely touched it. They barely touched
it because I think that's deep and turbulent, very choppy waters.
And the Supreme Court clearly across ideological lines, simply did
not want to go there. What is interesting contextually around
(17:07):
that former President Trump has not been charged with insurrection.
None of the defendants charged in January sixth offenses have
been charged with insurrection. Some have been charged with seditious conspiracy,
and the Federal Code one wrung below insurrection. There was
incitement to insurrection in the impeachment proceedings. The House impeached,
the Senate did not convict. And in that general context,
(17:31):
you can see how the Supreme Court would say, well,
this is not a settled matter. It doesn't fall squarely
in the Article two category of what states can do
to assign or decide eligibility. It's not like what's your age,
where is your place of birth? Standard eligibility criterion that
states manage and monitor on a regular basis. Insurrection, what
(17:53):
is it? Has there been a trial? Was there due process?
What they're a conviction? These are unanswered questions, and therefore
I think the court acknowledging that quietly did not go there.
But that is the context around whether or not there
is a definitive conclusion as to whether or not the
former president was an insurrectionist on that day. Lots of
(18:17):
Americans watching that day play out on live television and
remembering it vividly have decided for themselves. But that's not
the same as a court of law.
Speaker 1 (18:24):
Let's go to Marge, who is in Conway, Arkansas. Marge,
welcome to the middle. What do you think should Trump
be allowed on the ballot?
Speaker 10 (18:31):
Thank you well, I want him off for there. And
yet I can hear the arguments too. I heard the
all arguments this morning. I this won't sound I mean,
y'all are so brilliant, and I'm just a humble person.
I worked in behavioral health for a lot of years
(18:52):
and I'm retired. Anyway, I just think he's so dangerous,
and we knew a lot of us figured as a
criminal before he got in office. Anyway, I bet that.
I I just I think we need to do whatever
we can to to stop him. And I like the ideas.
(19:13):
The guy talked about trees and I just think we're
just so way behind on this, and I'll take my
comments off so I can hear other people.
Speaker 1 (19:24):
Okay, Marge, thank you very much for that call. Vic.
What do you what do you say to to Marge there?
Speaker 13 (19:30):
Well, I first of all like that she is open
minded and wants to credit the arguments on the other side,
I mean, listening to her, I'm struck with something that
you know, I often feel, and that is, you know,
if people don't like Donald Trump, they should defeat him
at the at the at the polls. I've never thought
any of these legal maneuvers were likely to end up
(19:54):
resolving what is essentially a big clash in America about
what we want our future to be. I will go back, though,
to what you said a moment ago, Jeremy. The Constitution's
reference to insurrection and rebellion is not a reference to
any particular federal or state criminal code. So it's just
like high crimes and misdemeanors. For impeachment is a generic
(20:16):
term of art that describes a constitutional idea. So someone
could be guilty of insurrection or rebellion within the meaning
of the Fourteenth Amendment and thus and perhaps not subject
to criminal prosecution for it. It's a it's a different question.
We need to know what the framers of the fourteenth
Amendment thought they were getting at when they talked about
insurrection and rebellion, not what any particular statute book says
(20:38):
about that down the road. So we've got to keep
that separate.
Speaker 1 (20:43):
Let's go to Richard in Las Vegas. Richard, welcome to
the middle. What do you think should Trump be allowed
to be on the ballot?
Speaker 7 (20:50):
Well, you know, I find Trump to be.
Speaker 12 (20:54):
An utterly despicable character, and I think the idea that
he would try to disrupt the electoral process is horrifying
and should make him unelectable. But I don't believe he
should be removed from the ballot. And one of the
key points is I listened to at least part of
the argument today on MPR that only got short shrift
was the idea of what constitutes an insurrection? And I
(21:17):
think that, you know, the fear I have is that is,
if this constitutes an insurrection, did, for example, protest during
the Vietnam War in which the legislative process in various
places may have been disrupted, Does that constitute an insurrection?
And would we want civil rights kinds of demonstrations when
labor unions, for example, went into the Wisconsin state legislature,
(21:41):
if they did the same thing with Congress, with that
constitute an insurrection which would disqualify people from running for office,
and they spent more time talking about what's an officer
of the government rather than this notion of the insurrection.
And I think this doesn't meet the threshold of say,
the Confederacy, which declared itself a separate nation and went
(22:02):
to war against the US government and its military.
Speaker 1 (22:06):
Richard, thank you for that, major Garrett, the question of
the insurrection that was such an unbelievable day, January sixth.
It's unlike anything that any of us has ever lived through.
But I did hear the justices. I think it was
Justice Roberts today saying, well, you know, if we say
this is an insurrection, that somebody could say in a
couple of years though, this is an insurrection too, and
(22:27):
so this person's not a lot on the ballot.
Speaker 5 (22:30):
What do you think, Well, one thing I think is important.
It emerged from the oral arguments in the larger context
of what January sixth was or wasn't. Former President Trump
calls it a beautiful day. He said, people who have
been charged and convicted or who have pled who are
still serving sentences are hostages, and they are patriots, and
(22:54):
they did something that was Waderline Noble, his attorney, confronting
the question of whether or not January sixth was an insurrection,
said no, it wasn't. It didn't last long enough and
it wasn't dangerous enough. But it was a riot, and
I'm quoting him directly, a riot that was shameful, criminal,
(23:15):
and violent. That is the former president's lead attorney addressing
the country through the Supreme Court about what January sixth was.
Let us not forget that.
Speaker 13 (23:26):
Jeremy, can I jump in here too? So this question
the color identified is huge. What exactly does the fourteenth
Amendment mean by insurrection? The starting point in everybody's arguments
has been, well, we know the Civil War was an
an insurrection, how does this compare to the Civil War.
That's why my older brother, a Yale law professor, and
(23:47):
I wrote our amicus brief, and I would encourage people
to read it because we point out that the framers
of the Fourteenth Amendment had certainly on their minds the
Civil War, but also being discussed was what we call
the First Insurrection, which was an effort by people in
President Buchanan's cabinet he was Lincoln's predecessor to try to
(24:08):
frustrate the inauguration of Abraham Lincoln and prevent the transfer
of power after Lincoln had become elected. And we call
that the First Insurrection, and it in some ways helped
set the stage for Fort Sumter and the Second Insurrection.
But it's not just about guns and troops and six
(24:29):
hundred thousand Americans losing their lives. It's also very much
about the attempts to frustrate the peaceful transfer of power.
And that's what Ulysses S. Grant and others said. And
we direct people to that history of the fourteenth Amendment.
That's the distinctive contribution that our brief makes.
Speaker 1 (24:47):
And people, of course can go online and google that
and read it. Let's get to Adrian in Tallahassee, Florida. Adrian,
go ahead, what do you think?
Speaker 15 (24:57):
Well, so, guys, what I'll say is this, I'm a
former lobbyist that is now a lawyer. So I grew
up in politics. My family had a lot of infirm
and for me, it's the appearance of impropriety. If if
if someone wants to run for president and we as
a government or a group or a court tries to
stop them, that's a that's the appearance of impropriety itself
(25:18):
is a problem. Democracy is democracy as someone and I'm
not calling anyone a tyrant. But if we want to
elect the tyrant, that's what the people want, that's that's
what democracy will do. I'm not saying that.
Speaker 1 (25:28):
Well, Adrian, let me ask you, though, what do you
think about What do you think about the fact that
if you're of a certain age, if you're too young,
you can't run. There are other qualifies, If if you
weren't born in the United States you can't be president?
Speaker 8 (25:40):
All right?
Speaker 1 (25:40):
What about how does that?
Speaker 15 (25:43):
I totally I support And those are all very you know,
we have these lines in society where we say this
is okay, that's an okay, and I get that, and
we we place those theres and we agree to that.
But here it's different. We have a person that's ran
and I'm not going to state whether I supported him
or not him. Maybe I didn't, but I am an attorney,
and I think that to not allow someone to run
(26:04):
the appearance of impropriety. To not let the people elect him,
if that's what they wanted, would be exceptionally harmful to
this country. That's what democracy is. Democracy doesn't always make
good decisions. We have to live with the decision that
we make with democracy and if it if it harms us,
that's our freedom and that's what democracy is. It's not
always perfect. So I understand what the justice they're hearing.
(26:24):
I understand what the issue is. But I think to
just did not allow someone to run would be dangerous.
I mean, that would be what another company would do.
That's what recently you saw putin did not allow it.
Speaker 1 (26:35):
Got it, We've got it, Adrian. Let me let me
take that to Major Garrett and see what he has
to say about that. To not allow somebody to run
is wrong, says Adrian.
Speaker 5 (26:45):
Well, I will tell Adrian that when I was in
Iowa for the Iowa Caucuses and in New Hampshire for
the New Hampshire primary, I encountered Republicans who quite clearly
felt that way, but also encounter Democrats who were queasy
about this idea of taking former President Trump's aim off
of any ballot. They were more comfortable and it might
just been a visceral thing. Wasn't a constitutional law conversation
(27:07):
we had. They were just expressing what I think for
them was a either foundational or near foundational sense that
the better way to deal with this is through the
political process and not have the legal process, whether through
the Supreme Court or some other means interposed itself.
Speaker 13 (27:27):
But German, let me let me go back, because you
made an important point. A natural born citizen is a
term in the Constitution, just as Neil Gorsich, when he
was a judge on the Tenth Circuit, upheld Colorado's ability
to exclude someone from the presidential ballot who was not
a natural born citizen. The question is whether Section three
(27:47):
of the fourteenth Amendment applies. If it does, it's no
different than age or citizenship. And you could say, well,
age is easy and insurrection is not natural born citizen.
People disagree over what that means. Gushon should be over
whether he is ineligible under the constitution. If he is,
the Constitution is our highest expression of democratic will, and
(28:10):
enforcing the constitution. You couldn't be more democratic than enforcing
the constitution.
Speaker 1 (28:15):
Tolliver. We're hearing from people online at listen to the
middle dot Com Absolutely.
Speaker 2 (28:19):
Jennifer and Atlanta writes Trump must be indicted, charged with
inciting an insurrection if not attempted, coup keeping, sharing highly
classified docs, et cetera, and certainly not granted immunity. Sheln
Chicago Rights. Seems clear to me that the Fourteenth Amendment
language prohibiting a person who has engaged in insurrection or
rebellion applies to several actions of mister Trump. I'll be
interested to see how the Conservative Supreme Court are riginalists
(28:41):
try to get around this one.
Speaker 1 (28:42):
All right, so some of the comments coming in online, VICKAMR.
Just briefly your thoughts there. You know, the idea of
the Conservative Supreme Court. We've heard a little bit about
that already today.
Speaker 11 (28:54):
Yeah.
Speaker 13 (28:54):
One of the things that is disappointing me about the
characterization of the oral argument is that the justice is
don't seem very attentive to originalism. Because, again, if you
really dig into the history of the Fourteenth Amendment and
you look at the structure of the electoral cause, I mean,
all this discussion about how much chaos would be ensue
would ensue if every state went their own way. Look,
(29:16):
some states allow felons to vote, others don't. Some states
use a butterfly ballot, others don't. Every state is decentralized,
So I think originalism cuts the other way in this case.
Speaker 1 (29:27):
Tolliver, one argument former President Trump's lawyer made today is
that the fourteenth Amendment doesn't apply to the president because
he's not an officer of the United States. So I
actually asked chat GPT today about that. Is the President
of the United States an officer of the United States
according to the Constitution, And the robot told me that yes,
the president is in part because when the president takes
(29:49):
the oath of office, he says, I solemnly swear that
I will faithfully execute the office of President of the United.
Speaker 2 (29:55):
States, definitive. Well, let's listen here to another clip from
the Or arguments. Here's just this, Sonya Sotomayor questioning Trump's
attorney Jonathan Mitchell.
Speaker 3 (30:05):
You argue that even though the president may or may
not qualify, presidency may or may not qualify as an
office under the United States, your principal argument is that
the president is not an officer of the United States.
Speaker 15 (30:18):
Correct.
Speaker 16 (30:19):
Yeah, I would say a little more forcefully than what
your honor just described. We believe the presidency is excluded
from office under the United States. But the argument we
have that he's excluded the president as an officer of
the United States is the stronger of the two textually
and has fewer implications for our constitution.
Speaker 3 (30:35):
Devote Jerry mander drule. Isn't it designed to benefit only
your client?
Speaker 5 (30:41):
Hmm?
Speaker 1 (30:42):
I'll say about that.
Speaker 2 (30:43):
I love this show.
Speaker 1 (30:44):
Yes, And by the way, if you are listening on
the podcast, we hope that you will go and rate
us as soon as you can five stars on any
podcast app get those ratings up. And also if you
would like to and can make a donation to the Middle,
you can do that in a text away at listen
to Themiddle dot com. We appreciate it so much. We
will be right back.
Speaker 5 (31:07):
This is the Middle.
Speaker 1 (31:08):
I'm Jeremy Hobson. If you're just joining us, we're asking
whether you think Donald Trump should be ruled ineligible to
run for president again because of the fourteenth Amendment to
the Constitution, which says, essentially anyone who engages in insurrection
can't hold office. Call us at eight four four four Middle.
That's eight four four four six four three three five three.
Our guests are Major Garrett, chief Washington correspondent for CBS News,
(31:29):
and Vick Amar, professor of law at UC Davis. We've
got a lot of calls coming in. Let's get to them.
Kate is in western Wisconsin. Kate, go ahead, welcome to
the middle.
Speaker 17 (31:42):
Hi, thank you for tiuing my call. Absolutely, I wanted
to just voice my opinion because I am a city
clerk in the state of Wisconsin, and I'm responsible for
administering our local elections within my municipality, and I am
(32:04):
quite honestly terrified about what's coming as we lead up
to the months in November. And I don't honestly know
if it would be a better scenario for Trump to
be on the ballot in order to avoid some sort
of math, violence, blowback, or if we really stand our
(32:28):
ground as a country and say that what he has
done is criminal and he is not fit to be
our president and lead our country. So I have a
very well, yeah, I have a very mixed opinion.
Speaker 1 (32:45):
I hear you, I hear you. You're torn, and Major Garrett,
I'm sure there are a lot of torn voters out
there who would say, you know, I believe this, but
I'm worried about that.
Speaker 5 (32:54):
And I just want to say thank you to Kate,
and Kate, I will in addition to thanking you for
the work you do as a civil servant to help
the residents of your community vote and have their votes
counted and verified. You are among hundreds of thousands of
Americans who do that work, either as civil servants or
(33:16):
as pole workers or election observers. They are the bedrock
and the foundation and spine of our As the professor
pointed out, differentiated democracy states to it in different ways
under different sets of rules, but all of them rely
on people like you. Kate, and I understand your anxiety,
(33:37):
I understand your fear. My book, The Big Truth Upholding
Democracy in the Age of the Big Lie, is a
love letter in many respects to those who do the
work you do. It is to say that we are
living in a time that should not be tolerable where
people who do this work on behalf of the furtherance
of our democracy live in fear on a day to
(33:58):
day basisbivalous about what Trump, what should or should not
happen to Trump is an outgrowth of something you should
not have to deal with, and it is an outgrowth
of something that only former President Trump bears responsibility for
a climate of not just doubt, but acidic suspicion about
something that is valid, confirmable, and legally sustainable, which is
(34:23):
our system of casting and counting ballots. It's never been better, actually,
and yet it is because of the slanders issued by
former President Trump doubted more than ever before. And Kate
is a living, breathing victim of that particular pathology.
Speaker 1 (34:38):
Let's go to David, who's in Greenville, South Carolina. David,
welcome to the middle What do you think.
Speaker 9 (34:44):
Well, thank you for taking my call. Definitively he should not.
The Constitution is clear. It's an insurrection. He's a citizen
in the United States. He is born the United States.
He studies to the law. I consider citizenship and office,
and the privilege of a citizen is also to be
(35:05):
contained to have the privilege of being elected to a
senaitor or the president, and you become an officer when
you attain that office. I am a citizen of the
United States. I have that office, that right because I
can vote. He also has the privilege of being born
United States and over thirty five. And we can disqualify
(35:31):
people because of certain situations as stated in the Constitution.
Speaker 1 (35:37):
David, thank you, vick Amar. I imagine you agree with
what David is saying there.
Speaker 7 (35:41):
Well.
Speaker 13 (35:41):
I do think the notion that someone who holds the
office of the President is not an officer of the
United States or doesn't hold office under the United States
to be quite silly. I also think the idea that
the president doesn't take an oath to support the Constitution
because the word support is not mentioned in the presidential oath. Instead,
he's required to protect and defend the Constitution. Those seem
(36:04):
to me to be supporting the Constitution. I think there
are complicated questions about whether Congress should have to act
and pass a law that lays out the groundwork for
the fifty states to operate here. I think the way
the Electoral College is set up, the power really resides
in the States, And as I say, I don't think
the Court is really grappling with that Originalist foundation. But
(36:25):
I do think that the fourteenth Amendment applies to the
presidency and Donald Trump, when he took the presidential oath,
is covered by the requirement that he not engage in
insurrection or rebellion.
Speaker 1 (36:37):
Let's go to Gordon in New Plymouth, Idaho. Gordon, Welcome
to the middle. Do you think Trump should be allowed
on the ballot?
Speaker 11 (36:44):
Hi a Fellas High World. I think mister Trump is
deemed to be an insurrectionist without a trial, Maybe Arizona's
legislature is going to feel legitimized to when they say, well,
this ballot handling wasn't handled correctly, so we legislators will
now choose the electors from Arizona without a trial. So
(37:08):
I feel it lends credibility for other people to accomplish
things without due process. And that's and I think that's
a Is that a big thing you could comment on? That?
Is that a big danger? Is Arizona legislature really got
themselves set up to say just according to rumor? You know, gee,
there's a lot of trouble in this election here. I
think the legislators better take it over, you know, Yeah?
(37:30):
Is that what's going on?
Speaker 1 (37:32):
Gordon? You bring up a very good question there, which is,
you know, if you've got fifty states doing fifty different things,
does the court process in Colorado is it up to
the standards of what we would want to affect a
national election? Major Garrett. This was actually brought up in
the oral arguments today by some of the justices. They're
worried about, you know, everything that went into that trial
in Colorado, and can they can they rely on that?
Speaker 5 (37:54):
Yes, So there were not a lot of particular meaning
hard edged questions about the due process of the five
day trial. Clearly, the lawyer representing the state of Colorado
offered a fulsome defense of that trial, saying all a
due process rights to former President Trump and his attorneys
were respected. They had every opportunity to provide witnesses, and
(38:17):
he could have testified himself. So they felt it was sufficient.
But the court was a little bit uncertain as to
whether or not all due process rights had been afforded,
if the testimony of one sociologist about the speech patterns
of the former president then president on January sixth, twenty
twenty one, were indicative of and should be read broadly
(38:39):
as insurrectionists a like. So there were justices who were
uncertain about that, And that also falls into the larger
umbrella of uncertainty about do we have a definitive conclusion
as to whether or not that day was an insurrection
and whether the former president is therefore guilty of being
an insurrectionist. As I meant earlier, the justices really steered
(39:03):
clear of that. In all specificity.
Speaker 1 (39:05):
Let's get to Melanie in Pittsburgh. Melanie, what do you think?
Speaker 18 (39:10):
Hi?
Speaker 19 (39:11):
I am not conflicted at all. He should definitely not
be on the ballot. And here are my reasons. First
of all, Justice Kavanaugh talked about letting the people decide,
when in fact, mister Trump's very goal in not recognizing
the results of twenty twenty election was to make sure
that eighty million of us didn't decide who was president.
So I'm not real concerned about giving him his due.
(39:35):
Justice Kagan talked about a single state not being able
to decide who wins the election. But right now, electors
can win by a slim majority in the electoral college
and get and that candidate can be awarded the electoral votes,
and that might decide the election. And yet that's okay.
And some of the justices even believe in the independent
(39:56):
state legislative theory, which you know there and then would
basically be eliminating anybody's right to decide. I don't think
it's I thought what I think it was, Justice Kagan, No,
it was a keep. Justice Thomas talked about well you know,
some mother state might call something else an insurrection kick
someone else on the other side off the ballot. I
(40:17):
think that's ridiculous because it's it's clear as day this
was an insurrection, and had they succeeded, it would have done,
you know, anything that the Civil War could have accomplished
in overturning our government.
Speaker 1 (40:31):
Melanie, thank you so much for that call. And vick
A Marriage talks about letting the people decide. I remember
that one of the justices on the court is there
because Donald Trump did not want to let the people
decide the election in twenty twenty and replaced Ruth Bader
Ginsburg as people were already voting. So the idea of say, well,
let's not solve this in the courts, let's let the
(40:51):
people decide in November. What do you make of that?
Speaker 13 (40:54):
Well, again, a lot of people talk as if there
is a national election for president and the majority of
people get their way. Twice in our lifetimes we've seen
the president be someone who lost the national popular vote.
We don't have a national popular election indeed, and this
is something that the justices don't seem to understand themselves.
(41:14):
States don't even have to have elections for electors the caller.
The previous caller mentioned that the Arizona legislature could pick
the electors itself. That's perfectly permissible under the constitution, provided
it's done before election day or on election day, not
after election day. And they're changing the process that was
in place, and it has to be consistent with the
(41:36):
state constitution.
Speaker 2 (41:37):
With state law.
Speaker 13 (41:38):
But other than that, it's up to each state. That's
the You know, I'm not a big fan of the
electoral college. Let's if we want to get rid of it,
we should, But as long as we have it, as
long as we're going to be faithful to the original design,
it vests power in each of the fifty states to
do it the way they want.
Speaker 1 (41:53):
I guarantee you we're going to do a show about
whether the electoral college should exist at some point on
the middle types. But right now, let's go to Gabriel
in the Twin Cities in Minnesota.
Speaker 20 (42:03):
Gabriel, go ahead, Yeah, Hi, So I just wanted to
say that, you know, I think that the Colorado decision
was actually about whether or not Donald Trump should appear
on the primary ballot. Personally, I don't think that a
civic institution or a public institution like the Colorado Supreme
short Court should determine whether or not Donald Trump should
(42:26):
appear on the primary ballot. Personally, I'm conflicted about whether
or not he should appear on the general election ballot,
but I think probably it's best that we determine this
at the ballot box. The other thing that I wanted
to mention is it's really concerning to me.
Speaker 1 (42:41):
You know.
Speaker 20 (42:41):
One of your previous callers mentioned that Elena Kagan owes
her allegiance to Donald Trump. Another one of your callers
said that the Chief Justice is actually Thomas, not Roberts.
To me, that sort of is indicative of how people
don't pay attention.
Speaker 1 (42:59):
Well, you know, I want to give yes, I hear you.
I do want to give our listeners a little credit.
It is a little bit difficult sometimes to keep track
of of all the names as you're talking about the
Spreme Court justices. By the way, you know, they're not televised.
We the only reason we have audio today is because
this was a particularly important case. But Major Garrett, what
about those those comments? And and you know, do you
(43:20):
do you give do you give listeners a little uh,
you know, a little credit if they don't remember all
the justices titles in.
Speaker 5 (43:26):
I do, I do, indeed, Uh, you know, come on,
Jeremy talking to you makes people nervous. Come on, you
know it's not They know they know Tolliver is gonna
fly spack everything on them.
Speaker 1 (43:36):
I forgot Amy Cony Barrett for a second there earlier
in the show.
Speaker 5 (43:40):
So, but to Gabriel's underlying point, I think it's worth
studying for a second. And I was surprised that the
justices didn't even dig into this even a little bit,
because a primary is different than a general election. A
primary is a party construct, Okay. Now, in Colorado they
have a law that's basically like, yes, okay, it's a
(44:03):
party construct, but it has inferences and direct consequences for
the general So they felt, that is to say, the
Colorado Supreme Court under state law, that they had permission
to evaluate this. Several other states have held this whole
question in abeyance because they've decided primaries are party matters,
(44:23):
they are not state matters, and when the general election
comes along, absent to Supreme Court reeling, they might that
clarifies this for once and forever, or maybe just for
this election. We'll see they might step back into it.
So it's not an insignificant point that Gable raises. But
the Supreme Court didn't spend even five seconds on that today,
which surprised me.
Speaker 1 (44:44):
I want to give a chance to our listener who's
calling from Honolulu to get on the air before we
close out this hour, because you know it's Hawaii. Why
not think about Hawaii for a minute here, Tom, Welcome
to the Middle Aloha. What do you think.
Speaker 18 (45:01):
For one thing, Mahallow for putting me on the show
and personally aside, the major gill at my hometown before
moving to the Islands was Gavenport, Iowa. And the one
thing that I have not seen you pre law when
(45:21):
I was in school. But I don't think that Donald
Trump was an insurrectionist. I think he was an instigator
and as part of his instigation, which resulted in the
deaths of three human beings, including a capital cop. I
really think that Donald Trump, if he faces any charges,
(45:46):
should be charged with felicitation of homicide because he caused
the people to show up at the Capitol and three
people died, so he had something to do. By what
a felicitation of the homicide that took place.
Speaker 1 (46:05):
Tom, thank you for that.
Speaker 5 (46:06):
Vick Amr.
Speaker 1 (46:07):
I'll just go to you on that. You know, we're
talking all about insurrection, not insurrection, but how do you
define that and is it is it? Is it going
to be difficult for anybody to be able to define
whether Trump committed insurrection or just instigated or whatever.
Speaker 13 (46:22):
Well, again, we want to we want to know what
the Constitution contemplated when it uses the term, what the
people who ratified the fourteenth Amendment mean. But at the
end of the day, it's really about whether each state
can reasonably implement that term. Even though we might some
of us might disagree about whether Donald Trump fit the
fit the bill or not. The question is whether the
(46:42):
people of Colorado could decide that. Remember if Colorado did
not exclude Donald Trump based on Section three, but they
just said as a matter of state law. Under under
Colorado law, we don't want someone on our ballot who
did X. Whether it's whether it's insurrection or not. That's
permissible under the electoral College because they don't have to
(47:04):
have an election in the first place. They could pick
the electors any way they want, as long as they're
not discriminating on the basis of race or religion or
the like. So I think people can disagree over whether
he's an insurrectionist, but the question is whether the Colorado
people have a right to their answer on that question.
Speaker 1 (47:21):
Well, and we're going to hear more about this. You
can still leave us messages at eight four to four
for middle. And of course, this is not the last
Trump case that may come up before the Supreme Court
before the election. Tolliver, it's time for a quiz for areas.
Speaker 2 (47:33):
We got to get music for this part. Note to Selve.
The fourteenth Amendment enshrined the right to marry whoever you want,
regardless of race. In which landmark case Griswold versus Connecticut,
Lawrence versus Texas, or Berga Fella versus Hodges Are Loving
versus Virginia?
Speaker 8 (47:48):
You know?
Speaker 5 (47:49):
Yeah, so say the question again. I think I think
there's a clause in there that's really important to the
ultimate correct answer.
Speaker 2 (47:56):
We have clause time. The fourteenth Amendment enshrining the right
to marry whoever you want to whoever you want, regardless
of race. In which landmark case Welcome.
Speaker 5 (48:04):
I would say Loving versus Virginia.
Speaker 1 (48:07):
Vikamar, you're the law professor.
Speaker 13 (48:09):
Yes, it's loving versus Rginia. Obert Gafell extended the loving
extended same sex mayor sex couples. But loving was a
very important case in nineteen sixty seven from Virginia.
Speaker 1 (48:21):
That is a Vikamar, professor of law at UC Davis.
And we've also been speaking with Major Garrett Chief, Washington,
correspondent for CBS News and co author of The Big Truth,
Upholding democracy in the Age of the Big Lie.
Speaker 5 (48:32):
Thanks to both of you so much, my pleasure, Thanks,
thank you.
Speaker 1 (48:36):
And next week, Tliver, we have a special edition of
The Middle. It is about a new documentary film called
War Game, which explores the question what if another January
sixth style event happened again, only this time with a
split in military loyalty. I moderated an all star panel
about the film at the sun Dance Film Festival in Utah.
Here's retired Army Major General Linda Singh.
Speaker 16 (48:59):
Military area is a microcosm of society, So for us
to think that it could not happen in the military,
then we're putting our heads in the sand.
Speaker 1 (49:08):
That conversation coming next week on the show.
Speaker 2 (49:11):
Can't wait for that. And by the way, make sure
to sign up for our free weekly newsletter at Listen
to the Middle dot com.
Speaker 1 (49:16):
The Middle is brought to you by Longnock Media, distributed
by Illinois Public Media in Urbana, Illinois, and produced by
Joanne Jennings, Harrison Patino, John Barth, and Danny Alexander. Our
technical director is Jason Croft. Our theme music was composed
by Andrew Haig. Thanks to Nashville Public Radio, iHeartMedia, and
the more than four hundred public radio stations that are
making it possible for people across the country to Listen
(49:37):
to the Middle, I'm Jeremy Hobson. Talk to you next week.
Speaker 3 (50:01):
These bus
Welcome to the Middle. I'm Jeremy Hobson along here with
our house. DJ Tolliver, Hi Tolliver.
Speaker 2 (00:09):
Hey Jeremy, so great to be here. Hey, we've got
new listeners.
Speaker 1 (00:12):
We have new listeners again this week at WVIK in
the quad cities on the Mississippi River. Those quad cities Moulin, Davenport, Bettendorff,
and Rock Island, all of in our audience now. So
this is the first Supreme Court focused episode of the
Middle because the High Court has put itself right in
the center of the presidential election. The Justice has heard
(00:35):
oral arguments in a case about whether Donald Trump can
be removed from the presidential ballot. The Colorado Supreme Court
ruled in December that Trump engaged in insurrection on January sixth,
twenty twenty one, and is therefore not eligible to hold
office because of the Fourteenth Amendment to the Constitution. That
amendment was ratified right after the Civil War. Former President
(00:56):
Trump appealed the case to the US Supreme Court. And
listen to this. Here's a from the hearing, Justice Elena
Kagan questioning the plaintiff, attorney Jason Murray, about the idea
of one state Colorado in this case, deciding who's on
the ballot in a presidential race.
Speaker 3 (01:11):
What's a state doing deciding who other citizens get to
vote for for president?
Speaker 4 (01:17):
Colorado is not deciding who other states get to vote
for for president. It's deciding how to assign its own
electors under its Article two power, and the Constitution grants
them not.
Speaker 5 (01:26):
But the effect of that is obvious.
Speaker 4 (01:28):
Yes, no, your honor, Because different states can have different procedures.
Some states may allow insurrectionists to be on the ballot.
Speaker 1 (01:36):
So we want to know what you think. I know
there was a lot of great moments this morning. We
want to know what you think should former President Trump
be removed from the twenty twenty four ballot? Our number
eight four four four middle. That's eight four four four
six four three three five three. We'll get to your
calls in a moment, but first, last week we asked
whether you think TikTok should be banned. Tolliver says no,
(02:00):
Some of you said yes. Here are some of the
voicemails that came in after the show.
Speaker 6 (02:04):
Him Emily calling from Bloomington, Indiana. My name is Laura
Mitchell and I'm calling from Nashville, Tennessee.
Speaker 7 (02:10):
Hi, My name is David.
Speaker 8 (02:11):
I'm calling from Los Angeles.
Speaker 7 (02:13):
HI.
Speaker 9 (02:13):
This is Mark from Houston, Texas. I see TikTok as
the democratization of news, meaning that it's not controlled by
privately held news companies.
Speaker 10 (02:23):
I wanted to say that I think that people are
just going to give up on TikTok anyway, so I
don't even think the question really will super matter.
Speaker 6 (02:30):
I do think that TikTok should be banned. I saw
it and how it affected my daughter. It has an
incredible influence on kids. It controls them. My daughter actually
told said to me at one point that if I
took it away from her, she was going to kill herself.
And I had the hardest time getting her to stop
(02:51):
watching it. I'm a comedian and so I need TikTok.
Speaker 11 (02:55):
For my success.
Speaker 2 (02:56):
But it's a horrible app aside from the security reason.
Speaker 12 (03:00):
So if it got and I'd be like, that's fine, good.
Speaker 7 (03:03):
Reading, you know.
Speaker 1 (03:04):
I was surprised how many people said they made their
living on TikTok, not just influence. There's a lot of people.
So this hour we're asking should Donald Trump be disqualified
from running for president again because of January sixth. Let's
meet our panel. Major Garrett, chief Washington correspondent for CBS
News and co author of The Big Truth, Upholding Democracy
in the Age of the Big Lie. He anchored live
coverage of today's oral Arguments for CBS News. Major Garrett
(03:27):
Welcome to the Middle, Jeremy.
Speaker 5 (03:29):
It's great to be with you. And can I say
hello a special hello to Moline.
Speaker 1 (03:33):
Yeah, that's the one of the quad cities that you
want to say hello to.
Speaker 5 (03:37):
Okay, I want to say a special hello to Moline.
My sainted mother, who died in twenty fourteen, was born
and raised in Moline, Illinois. Wow, and today would have
been her today would have if she was still with us,
it would have been her ninety first birthday today, February amazing.
So everyone in moleene, I love you.
Speaker 1 (03:56):
All right, Well, let's meet our other panel guest, Victor Amar,
professor of law at University of California Davis and former
dean of the University of Illinois College of Law. He
joins us from the Middle World headquarters in Urbana, Illinois.
Vicker Mamar, welcome to the Middle.
Speaker 13 (04:09):
Thank you for having me and love the place. So
I'm with Major on that one.
Speaker 1 (04:15):
Okay, all right, we got that out of the way.
Let me ask you before we get to the phones,
and they are lighting up right now. But Major Garrett,
there are a lot of people on both sides of
the political spectrum who don't think for one second that
this Supreme Court is going to rule against Donald Trump
on this. In fact, after the oral arguments, it looks
like even maybe some of the liberal members of the
Court might rule in Trump's favor. Is there any suspense
(04:37):
from your point of.
Speaker 5 (04:37):
View, not really. As you mentioned, I anchored all of
our coverage on CBS News streaming today. We had several
legal experts on I talked to lawyers later on today
about this who listened to the arguments in totality, and
what they detected was an emerging consensus on the court
to not uphold the Colorado Supreme Court decision to take
(05:01):
former President Trump off the primary ballot in Colorado, and
not necessarily on pure constitutional grounds, although there was some
reason to cite the Constitution in order to get there,
there was a much greater consensus that emerged through questioning
of all the various attorneys before the court about the
(05:22):
practical difficulties that would ensue that would follow if in fact,
the Supreme Court said yes, Colorado. There was a trial,
and the trial proceeding led the Supreme Court of Colorado
to conclude on a four to three vote that former
(05:42):
President Trump engaged in insurrection and therefore was disqualified under
the Fourteenth Amendment Section three. The emerging consensus through the
questions was, you know that is going to create confusion, doubts,
and practical difficulties for an already fraught political space in
(06:07):
twenty twenty four. And you could tell that the Supreme
Court simply did not want to be the arbiter that
set those difficulties practical and otherwise in motion.
Speaker 1 (06:17):
Vikamar, you actually co authored a Friend of the Court
brief in this case. You think this is pretty clear
cut that the Fourteenth Amendment is applicable here. Do you
think there's a question about which way the court will go?
Speaker 13 (06:30):
Well, it's sometimes diceye to predict outcomes based on oral argument,
but I think I agree with Garrett from everything that
I've read. I didn't listen to the entire argument yet.
I was teaching a class this morning, but it seems
that there are a majority of justices who want to
coalesce around some arguments They're not necessarily the best analytic
or historical arguments, but they seem to have some traction
(06:53):
at the court. I want to go back to the
first clip that you aired, though, because I think that's
where the Court is off on the wrong foot. Justice
Kagan was wrong, and that the lawyer for the challengers
was right that this case is not about what is
going to happen in every state. It's about what Colorado
is allowed to do. Just because Colorado can decide to
(07:16):
exclude someone from the ballot doesn't mean other states have
to reach that same conclusion. I would have put it
a little differently than the lawyer. I wouldn't have said
other states can allow insurrectionists. I would have said other
states can have different processes for determining whether someone is
an insurrectionist and come out differently on that question. I
want to just read one little passage from an article
I read on CNN today because Chief Justice John Roberts,
(07:38):
who's usually just whip smart, a really bright guy, he
said something that really struck me as not very sophisticated.
So the CNN article says the courts ruling would have
implications for other states where challenges to Trump's eligibility or pending.
But the fallout from a rule against Trump, Roberts said,
could be even wider if Trump is removed from the
ballot in Colorado. Roberts predicted that states would have been
(08:00):
attempt to knock other candidates out in future elections that
he said would seem to be inconsistent. He said, quote,
it'll come down to just a handful of states that
are going to decide the presidential election. That's a pretty
daunting consequence. Welcome to the Electoral College. It's always that's
the way it is.
Speaker 1 (08:17):
Let's get to the funds because they are lighting up.
Harry is joining us from Missouri City, Texas. Harry, Welcome
to the middle. What do you think should Trump be
allowed on the ballot this fall?
Speaker 7 (08:30):
Hello? Can you hear me?
Speaker 8 (08:31):
Yep?
Speaker 1 (08:32):
I can hear you?
Speaker 7 (08:32):
Go ahead, Okay, Hello, I don't think Donald Trump should
be allowed on the ballot. I think like you, Las
was and hello to the panel. I think that lawyer
was correct. I think Kagan Elaine Tagan was wrong. I
think Kagan, Alito, Thomas Kavanaugh, Gorsage and Roberts will probably
(08:54):
vote to keep him on the ballot because he put
three of those people there, and they feel that they
want they have an allegiance to him, and they like
his conservative views and they want him back in the
White House. Those other three liberals, I think they'll probably
do the right thing. They'll look at the fact that
he violated the constitution. He caused an insurrection, and as
(09:15):
the fourteenth Amendment clearly states, when you violate the Constitution
and you cause an insurrection, you should not be allowed
to whole office again. And I just think Kagan would
have just looked for any other excuse. If say, all
the other states and on beautiful country decided that he
should be taken off the ballot, she would have still
said that, Well, I don't think the states should be
(09:36):
deciding who should run for president because her allegiance is
to Donald Trump and it doesn't matter what he did.
Those conservatives feel that he can do no wrong. Their
allegiance is to him, and then I just don't know
if I trust them to do the right thing and
follow the constitutional law.
Speaker 1 (09:54):
Well, and just to remind our listeners, Elena Kagan was
actually nominated by President Obama. But major what about what
Harry just brought up there that three of the justices
on the Court Cavanaugh and who am I forgetting?
Speaker 5 (10:09):
Amy Cony Barrett and Amy Coney.
Speaker 1 (10:10):
Barrett all were nominated by Donald Trump. Whose future is
at stake here?
Speaker 5 (10:15):
Yes, absolutely, And in a couple of instances, it was
noteworthy during oral arguments that Judge Associate Justice Gorsuch, Associate
Justice Kavanaugh, and to a lesser extent, Associate Justice Barrett
asked what I think some might regard as leading questions
of the former president's main attorney, John Mitchell, questions that
(10:39):
went along the lines of well, this and this and this,
don't you agree or isn't that a problematic thing from
your point of view? And the Trump attorney was like, yes,
you're right, Justice so and so. So there was that
atmospheric that played along. But look to the caller's point,
I would just say, look at the transcript or listen
to the recording of the oral arguments. Justice Katanji Brown
(11:03):
Jackson asked questions that were sympathetic to some of the
orientations of John Mitchell, the former president's attorney, as did
Sonya Sotomayor. It was not one of these instances where
there was one lone dissident quote unquote liberal justice citing
or at least sympathizing intellectually or constitutionally with the former
(11:26):
president's attorney's arguments.
Speaker 1 (11:28):
You know, Toliver. A lot of people have been bringing
up another Supreme Court case involving a presidential election, one
that happened back in the year two thousand.
Speaker 2 (11:35):
I remember it well. I was a freshman in high
school when the Supreme Court heard Bush Vigor. My votes
were still being kind of in a Florida. The justices
essentially delivered the election to George W.
Speaker 7 (11:44):
Bush.
Speaker 2 (11:45):
Here's former Vice President Al Gore, conceding the election after
the ruling.
Speaker 14 (11:49):
Let there be no doubt. While I strongly disagree with
the Court's decision, I accept it. I accept the finality
of this outcome, which will be ratified next month in
the Electoral College and tonight. For the sake of our
unity as of people and the strength of our democracy,
I offer my concession.
Speaker 1 (12:08):
A concession, by the way, is one thing that Donald
Trump has yet to offer since he lost the election
in twenty twenty. Spicy, Spicy, we will be right back
with more of the middle. This is the middle. I'm
Jeremy Hobson. If you're just tuning in the middle as
a national call in show. We're focused on elevating voices
from the middle geographically, politically, and philosophically, or maybe you
(12:30):
just want to meet in the middle. This hour, we're
asking do you think Donald Trump should be removed from
the twenty twenty four presidential ballot. Whether you do or
you don't, we want to hear from you.
Speaker 2 (12:41):
Absolutely give us a call right now at eight four
four four Middle. That's eight four four four six four
three three five three. You can also write to us
that listen to the Middle dot com or on social media.
Speaker 1 (12:51):
I'm joined by Major Garrett, chief Washington correspondent for CBS News,
and Vick Amar, a constitutional scholar and professor of law
at UC Davis. Before we get back to the phone,
Major Garrett, how much do you think the Supreme Court
thinks about what the public reaction would be if they
were to rule one way or the other.
Speaker 5 (13:10):
I can't give you a definitive answer on that, but
I can glean inferences, I think fairly from the oral arguments.
And it was a consideration, not the pre eminent consideration,
but clearly the Court was asking questions about how the
country at large would not not only deal with the
(13:30):
possibility of affirming Colorado's decision, therefore signaling to other states
that you are greenlighted to make similar appraisals of Donald
Trump's qualifications on your own ballot. But they wanted to,
through their questioning, try to have everyone grapple with not
only from their point of view, chaos or instability or
(13:52):
uncertainty that would sow, but also related to that, the
blowback they would fall upon the Supreme Court. Now, of course,
as our distinguished professor knows, that's not supposed to be
a leading or even near leading consideration for the Court.
It should be what the Constitution says, what precedent applies,
and what any other facts of the case assert.
Speaker 1 (14:15):
What about that, vickemar that. I mean, how much can
the court think about politics and about public reaction to
their decisions.
Speaker 13 (14:23):
Well, you know, the Court, it has said, lacks the
power of the purse and the power of the sword,
so its influence is based on the people's acceptance of
its rulings. So it's only natural that over time the
Court tries to preserve its political capital, so to speak.
That doesn't mean that justices should ever act in a
truly partisan way. But I want to go back you
know Tolliver invoked Bush versus Gore, I think quite rightly.
(14:46):
But and Bush versus Gore I think was wrong legally,
And I think it looks like the Court might do
some legally wrong things today or in this case too,
Maybe because the lawyers didn't do a great job, or
because there wasn't enough time to really dig in and
read all the briefs, or because the justices themselves aren't
experts in this stuff. But I think the Court is
going to avoid a big mistake they made in Bush
(15:07):
versus Gore, and that is decide the case on partisan grounds.
Bush versus Gore was particularly problematic because it was Democratic
appointees ruling for Gore and Republican appointees ruling for Bush.
It seems as a major pointed out that there's going
to be consensus, and you, Jeremy pointed out across the
partisan aisle, which is at least better in that important respect.
Speaker 1 (15:31):
Let's get to the phones, and Ryan is with us
from Philadelphia. Ryan, go ahead, welcome to the middle.
Speaker 8 (15:38):
Hi, thanks for having me on. I would just like
to say, first off, I agree with the General that
I think the Court should be focusing more on the
legality rather than the effect of whether he should be
on the ballot. But I think I personally would like
to see a criminal trial regarding the treason if that's
going to be a reason to disqualify him from the ballot.
(16:01):
I know we had the impeachment trial and everything, but
you know those are inherently very politically motivated in terms
of the ruling. So I think if we and now
that the ruling came down that he has to be
tried as citizen Trump, that he doesn't have that natural
immunity from being president, and I think it's it's worth
maybe trying to do a criminal trial and then possibly
disqualifying him if he's found guilty criminally.
Speaker 1 (16:23):
Right, Thanks for that, Colin, Thanks for provoting Major to General.
By the way, Major is his name is life.
Speaker 5 (16:32):
Only?
Speaker 1 (16:33):
Okay? But but Major Garrett, what about that? That that was?
That was actually one of the things I thought would
come up in the in the oral arguments, and it
really didn't, which is did not doesn't It doesn't that
the president have to get on trial in order for
this to write exactly.
Speaker 5 (16:45):
Anyone who tuned in this morning saying, oh, I'm dear,
there's going to be a meaty argument over the insurrection
definition by the Supreme Court. I can't wait. Will you
be solely disappointed? They barely touched it. They barely touched
it because I think that's deep and turbulent, very choppy waters.
And the Supreme Court clearly across ideological lines, simply did
not want to go there. What is interesting contextually around
(17:07):
that former President Trump has not been charged with insurrection.
None of the defendants charged in January sixth offenses have
been charged with insurrection. Some have been charged with seditious conspiracy,
and the Federal Code one wrung below insurrection. There was
incitement to insurrection in the impeachment proceedings. The House impeached,
the Senate did not convict. And in that general context,
(17:31):
you can see how the Supreme Court would say, well,
this is not a settled matter. It doesn't fall squarely
in the Article two category of what states can do
to assign or decide eligibility. It's not like what's your age,
where is your place of birth? Standard eligibility criterion that
states manage and monitor on a regular basis. Insurrection, what
(17:53):
is it? Has there been a trial? Was there due process?
What they're a conviction? These are unanswered questions, and therefore
I think the court acknowledging that quietly did not go there.
But that is the context around whether or not there
is a definitive conclusion as to whether or not the
former president was an insurrectionist on that day. Lots of
(18:17):
Americans watching that day play out on live television and
remembering it vividly have decided for themselves. But that's not
the same as a court of law.
Speaker 1 (18:24):
Let's go to Marge, who is in Conway, Arkansas. Marge,
welcome to the middle. What do you think should Trump
be allowed on the ballot?
Speaker 10 (18:31):
Thank you well, I want him off for there. And
yet I can hear the arguments too. I heard the
all arguments this morning. I this won't sound I mean,
y'all are so brilliant, and I'm just a humble person.
I worked in behavioral health for a lot of years
(18:52):
and I'm retired. Anyway, I just think he's so dangerous,
and we knew a lot of us figured as a
criminal before he got in office. Anyway, I bet that.
I I just I think we need to do whatever
we can to to stop him. And I like the ideas.
(19:13):
The guy talked about trees and I just think we're
just so way behind on this, and I'll take my
comments off so I can hear other people.
Speaker 1 (19:24):
Okay, Marge, thank you very much for that call. Vic.
What do you what do you say to to Marge there?
Speaker 13 (19:30):
Well, I first of all like that she is open
minded and wants to credit the arguments on the other side,
I mean, listening to her, I'm struck with something that
you know, I often feel, and that is, you know,
if people don't like Donald Trump, they should defeat him
at the at the at the polls. I've never thought
any of these legal maneuvers were likely to end up
(19:54):
resolving what is essentially a big clash in America about
what we want our future to be. I will go back, though,
to what you said a moment ago, Jeremy. The Constitution's
reference to insurrection and rebellion is not a reference to
any particular federal or state criminal code. So it's just
like high crimes and misdemeanors. For impeachment is a generic
(20:16):
term of art that describes a constitutional idea. So someone
could be guilty of insurrection or rebellion within the meaning
of the Fourteenth Amendment and thus and perhaps not subject
to criminal prosecution for it. It's a it's a different question.
We need to know what the framers of the fourteenth
Amendment thought they were getting at when they talked about
insurrection and rebellion, not what any particular statute book says
(20:38):
about that down the road. So we've got to keep
that separate.
Speaker 1 (20:43):
Let's go to Richard in Las Vegas. Richard, welcome to
the middle. What do you think should Trump be allowed
to be on the ballot?
Speaker 7 (20:50):
Well, you know, I find Trump to be.
Speaker 12 (20:54):
An utterly despicable character, and I think the idea that
he would try to disrupt the electoral process is horrifying
and should make him unelectable. But I don't believe he
should be removed from the ballot. And one of the
key points is I listened to at least part of
the argument today on MPR that only got short shrift
was the idea of what constitutes an insurrection? And I
(21:17):
think that, you know, the fear I have is that is,
if this constitutes an insurrection, did, for example, protest during
the Vietnam War in which the legislative process in various
places may have been disrupted, Does that constitute an insurrection?
And would we want civil rights kinds of demonstrations when
labor unions, for example, went into the Wisconsin state legislature,
(21:41):
if they did the same thing with Congress, with that
constitute an insurrection which would disqualify people from running for office,
and they spent more time talking about what's an officer
of the government rather than this notion of the insurrection.
And I think this doesn't meet the threshold of say,
the Confederacy, which declared itself a separate nation and went
(22:02):
to war against the US government and its military.
Speaker 1 (22:06):
Richard, thank you for that, major Garrett, the question of
the insurrection that was such an unbelievable day, January sixth.
It's unlike anything that any of us has ever lived through.
But I did hear the justices. I think it was
Justice Roberts today saying, well, you know, if we say
this is an insurrection, that somebody could say in a
couple of years though, this is an insurrection too, and
(22:27):
so this person's not a lot on the ballot.
Speaker 5 (22:30):
What do you think, Well, one thing I think is important.
It emerged from the oral arguments in the larger context
of what January sixth was or wasn't. Former President Trump
calls it a beautiful day. He said, people who have
been charged and convicted or who have pled who are
still serving sentences are hostages, and they are patriots, and
(22:54):
they did something that was Waderline Noble, his attorney, confronting
the question of whether or not January sixth was an insurrection,
said no, it wasn't. It didn't last long enough and
it wasn't dangerous enough. But it was a riot, and
I'm quoting him directly, a riot that was shameful, criminal,
(23:15):
and violent. That is the former president's lead attorney addressing
the country through the Supreme Court about what January sixth was.
Let us not forget that.
Speaker 13 (23:26):
Jeremy, can I jump in here too? So this question
the color identified is huge. What exactly does the fourteenth
Amendment mean by insurrection? The starting point in everybody's arguments
has been, well, we know the Civil War was an
an insurrection, how does this compare to the Civil War.
That's why my older brother, a Yale law professor, and
(23:47):
I wrote our amicus brief, and I would encourage people
to read it because we point out that the framers
of the Fourteenth Amendment had certainly on their minds the
Civil War, but also being discussed was what we call
the First Insurrection, which was an effort by people in
President Buchanan's cabinet he was Lincoln's predecessor to try to
(24:08):
frustrate the inauguration of Abraham Lincoln and prevent the transfer
of power after Lincoln had become elected. And we call
that the First Insurrection, and it in some ways helped
set the stage for Fort Sumter and the Second Insurrection.
But it's not just about guns and troops and six
(24:29):
hundred thousand Americans losing their lives. It's also very much
about the attempts to frustrate the peaceful transfer of power.
And that's what Ulysses S. Grant and others said. And
we direct people to that history of the fourteenth Amendment.
That's the distinctive contribution that our brief makes.
Speaker 1 (24:47):
And people, of course can go online and google that
and read it. Let's get to Adrian in Tallahassee, Florida. Adrian,
go ahead, what do you think?
Speaker 15 (24:57):
Well, so, guys, what I'll say is this, I'm a
former lobbyist that is now a lawyer. So I grew
up in politics. My family had a lot of infirm
and for me, it's the appearance of impropriety. If if
if someone wants to run for president and we as
a government or a group or a court tries to
stop them, that's a that's the appearance of impropriety itself
(25:18):
is a problem. Democracy is democracy as someone and I'm
not calling anyone a tyrant. But if we want to
elect the tyrant, that's what the people want, that's that's
what democracy will do. I'm not saying that.
Speaker 1 (25:28):
Well, Adrian, let me ask you, though, what do you
think about What do you think about the fact that
if you're of a certain age, if you're too young,
you can't run. There are other qualifies, If if you
weren't born in the United States you can't be president?
Speaker 8 (25:40):
All right?
Speaker 1 (25:40):
What about how does that?
Speaker 15 (25:43):
I totally I support And those are all very you know,
we have these lines in society where we say this
is okay, that's an okay, and I get that, and
we we place those theres and we agree to that.
But here it's different. We have a person that's ran
and I'm not going to state whether I supported him
or not him. Maybe I didn't, but I am an attorney,
and I think that to not allow someone to run
(26:04):
the appearance of impropriety. To not let the people elect him,
if that's what they wanted, would be exceptionally harmful to
this country. That's what democracy is. Democracy doesn't always make
good decisions. We have to live with the decision that
we make with democracy and if it if it harms us,
that's our freedom and that's what democracy is. It's not
always perfect. So I understand what the justice they're hearing.
(26:24):
I understand what the issue is. But I think to
just did not allow someone to run would be dangerous.
I mean, that would be what another company would do.
That's what recently you saw putin did not allow it.
Speaker 1 (26:35):
Got it, We've got it, Adrian. Let me let me
take that to Major Garrett and see what he has
to say about that. To not allow somebody to run
is wrong, says Adrian.
Speaker 5 (26:45):
Well, I will tell Adrian that when I was in
Iowa for the Iowa Caucuses and in New Hampshire for
the New Hampshire primary, I encountered Republicans who quite clearly
felt that way, but also encounter Democrats who were queasy
about this idea of taking former President Trump's aim off
of any ballot. They were more comfortable and it might
just been a visceral thing. Wasn't a constitutional law conversation
(27:07):
we had. They were just expressing what I think for
them was a either foundational or near foundational sense that
the better way to deal with this is through the
political process and not have the legal process, whether through
the Supreme Court or some other means interposed itself.
Speaker 13 (27:27):
But German, let me let me go back, because you
made an important point. A natural born citizen is a
term in the Constitution, just as Neil Gorsich, when he
was a judge on the Tenth Circuit, upheld Colorado's ability
to exclude someone from the presidential ballot who was not
a natural born citizen. The question is whether Section three
(27:47):
of the fourteenth Amendment applies. If it does, it's no
different than age or citizenship. And you could say, well,
age is easy and insurrection is not natural born citizen.
People disagree over what that means. Gushon should be over
whether he is ineligible under the constitution. If he is,
the Constitution is our highest expression of democratic will, and
(28:10):
enforcing the constitution. You couldn't be more democratic than enforcing
the constitution.
Speaker 1 (28:15):
Tolliver. We're hearing from people online at listen to the
middle dot Com Absolutely.
Speaker 2 (28:19):
Jennifer and Atlanta writes Trump must be indicted, charged with
inciting an insurrection if not attempted, coup keeping, sharing highly
classified docs, et cetera, and certainly not granted immunity. Sheln
Chicago Rights. Seems clear to me that the Fourteenth Amendment
language prohibiting a person who has engaged in insurrection or
rebellion applies to several actions of mister Trump. I'll be
interested to see how the Conservative Supreme Court are riginalists
(28:41):
try to get around this one.
Speaker 1 (28:42):
All right, so some of the comments coming in online, VICKAMR.
Just briefly your thoughts there. You know, the idea of
the Conservative Supreme Court. We've heard a little bit about
that already today.
Speaker 11 (28:54):
Yeah.
Speaker 13 (28:54):
One of the things that is disappointing me about the
characterization of the oral argument is that the justice is
don't seem very attentive to originalism. Because, again, if you
really dig into the history of the Fourteenth Amendment and
you look at the structure of the electoral cause, I mean,
all this discussion about how much chaos would be ensue
would ensue if every state went their own way. Look,
(29:16):
some states allow felons to vote, others don't. Some states
use a butterfly ballot, others don't. Every state is decentralized,
So I think originalism cuts the other way in this case.
Speaker 1 (29:27):
Tolliver, one argument former President Trump's lawyer made today is
that the fourteenth Amendment doesn't apply to the president because
he's not an officer of the United States. So I
actually asked chat GPT today about that. Is the President
of the United States an officer of the United States
according to the Constitution, And the robot told me that yes,
the president is in part because when the president takes
(29:49):
the oath of office, he says, I solemnly swear that
I will faithfully execute the office of President of the United.
Speaker 2 (29:55):
States, definitive. Well, let's listen here to another clip from
the Or arguments. Here's just this, Sonya Sotomayor questioning Trump's
attorney Jonathan Mitchell.
Speaker 3 (30:05):
You argue that even though the president may or may
not qualify, presidency may or may not qualify as an
office under the United States, your principal argument is that
the president is not an officer of the United States.
Speaker 15 (30:18):
Correct.
Speaker 16 (30:19):
Yeah, I would say a little more forcefully than what
your honor just described. We believe the presidency is excluded
from office under the United States. But the argument we
have that he's excluded the president as an officer of
the United States is the stronger of the two textually
and has fewer implications for our constitution.
Speaker 3 (30:35):
Devote Jerry mander drule. Isn't it designed to benefit only
your client?
Speaker 5 (30:41):
Hmm?
Speaker 1 (30:42):
I'll say about that.
Speaker 2 (30:43):
I love this show.
Speaker 1 (30:44):
Yes, And by the way, if you are listening on
the podcast, we hope that you will go and rate
us as soon as you can five stars on any
podcast app get those ratings up. And also if you
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to Themiddle dot com. We appreciate it so much. We
will be right back.
Speaker 5 (31:07):
This is the Middle.
Speaker 1 (31:08):
I'm Jeremy Hobson. If you're just joining us, we're asking
whether you think Donald Trump should be ruled ineligible to
run for president again because of the fourteenth Amendment to
the Constitution, which says, essentially anyone who engages in insurrection
can't hold office. Call us at eight four four four Middle.
That's eight four four four six four three three five three.
Our guests are Major Garrett, chief Washington correspondent for CBS News,
(31:29):
and Vick Amar, professor of law at UC Davis. We've
got a lot of calls coming in. Let's get to them.
Kate is in western Wisconsin. Kate, go ahead, welcome to
the middle.
Speaker 17 (31:42):
Hi, thank you for tiuing my call. Absolutely, I wanted
to just voice my opinion because I am a city
clerk in the state of Wisconsin, and I'm responsible for
administering our local elections within my municipality, and I am
(32:04):
quite honestly terrified about what's coming as we lead up
to the months in November. And I don't honestly know
if it would be a better scenario for Trump to
be on the ballot in order to avoid some sort
of math, violence, blowback, or if we really stand our
(32:28):
ground as a country and say that what he has
done is criminal and he is not fit to be
our president and lead our country. So I have a
very well, yeah, I have a very mixed opinion.
Speaker 1 (32:45):
I hear you, I hear you. You're torn, and Major Garrett,
I'm sure there are a lot of torn voters out
there who would say, you know, I believe this, but
I'm worried about that.
Speaker 5 (32:54):
And I just want to say thank you to Kate,
and Kate, I will in addition to thanking you for
the work you do as a civil servant to help
the residents of your community vote and have their votes
counted and verified. You are among hundreds of thousands of
Americans who do that work, either as civil servants or
(33:16):
as pole workers or election observers. They are the bedrock
and the foundation and spine of our As the professor
pointed out, differentiated democracy states to it in different ways
under different sets of rules, but all of them rely
on people like you. Kate, and I understand your anxiety,
(33:37):
I understand your fear. My book, The Big Truth Upholding
Democracy in the Age of the Big Lie, is a
love letter in many respects to those who do the
work you do. It is to say that we are
living in a time that should not be tolerable where
people who do this work on behalf of the furtherance
of our democracy live in fear on a day to
(33:58):
day basisbivalous about what Trump, what should or should not
happen to Trump is an outgrowth of something you should
not have to deal with, and it is an outgrowth
of something that only former President Trump bears responsibility for
a climate of not just doubt, but acidic suspicion about
something that is valid, confirmable, and legally sustainable, which is
(34:23):
our system of casting and counting ballots. It's never been better, actually,
and yet it is because of the slanders issued by
former President Trump doubted more than ever before. And Kate
is a living, breathing victim of that particular pathology.
Speaker 1 (34:38):
Let's go to David, who's in Greenville, South Carolina. David,
welcome to the middle What do you think.
Speaker 9 (34:44):
Well, thank you for taking my call. Definitively he should not.
The Constitution is clear. It's an insurrection. He's a citizen
in the United States. He is born the United States.
He studies to the law. I consider citizenship and office,
and the privilege of a citizen is also to be
(35:05):
contained to have the privilege of being elected to a
senaitor or the president, and you become an officer when
you attain that office. I am a citizen of the
United States. I have that office, that right because I
can vote. He also has the privilege of being born
United States and over thirty five. And we can disqualify
(35:31):
people because of certain situations as stated in the Constitution.
Speaker 1 (35:37):
David, thank you, vick Amar. I imagine you agree with
what David is saying there.
Speaker 7 (35:41):
Well.
Speaker 13 (35:41):
I do think the notion that someone who holds the
office of the President is not an officer of the
United States or doesn't hold office under the United States
to be quite silly. I also think the idea that
the president doesn't take an oath to support the Constitution
because the word support is not mentioned in the presidential oath. Instead,
he's required to protect and defend the Constitution. Those seem
(36:04):
to me to be supporting the Constitution. I think there
are complicated questions about whether Congress should have to act
and pass a law that lays out the groundwork for
the fifty states to operate here. I think the way
the Electoral College is set up, the power really resides
in the States, And as I say, I don't think
the Court is really grappling with that Originalist foundation. But
(36:25):
I do think that the fourteenth Amendment applies to the
presidency and Donald Trump, when he took the presidential oath,
is covered by the requirement that he not engage in
insurrection or rebellion.
Speaker 1 (36:37):
Let's go to Gordon in New Plymouth, Idaho. Gordon, Welcome
to the middle. Do you think Trump should be allowed
on the ballot?
Speaker 11 (36:44):
Hi a Fellas High World. I think mister Trump is
deemed to be an insurrectionist without a trial, Maybe Arizona's
legislature is going to feel legitimized to when they say, well,
this ballot handling wasn't handled correctly, so we legislators will
now choose the electors from Arizona without a trial. So
(37:08):
I feel it lends credibility for other people to accomplish
things without due process. And that's and I think that's
a Is that a big thing you could comment on? That?
Is that a big danger? Is Arizona legislature really got
themselves set up to say just according to rumor? You know, gee,
there's a lot of trouble in this election here. I
think the legislators better take it over, you know, Yeah?
(37:30):
Is that what's going on?
Speaker 1 (37:32):
Gordon? You bring up a very good question there, which is,
you know, if you've got fifty states doing fifty different things,
does the court process in Colorado is it up to
the standards of what we would want to affect a
national election? Major Garrett. This was actually brought up in
the oral arguments today by some of the justices. They're
worried about, you know, everything that went into that trial
in Colorado, and can they can they rely on that?
Speaker 5 (37:54):
Yes, So there were not a lot of particular meaning
hard edged questions about the due process of the five
day trial. Clearly, the lawyer representing the state of Colorado
offered a fulsome defense of that trial, saying all a
due process rights to former President Trump and his attorneys
were respected. They had every opportunity to provide witnesses, and
(38:17):
he could have testified himself. So they felt it was sufficient.
But the court was a little bit uncertain as to
whether or not all due process rights had been afforded,
if the testimony of one sociologist about the speech patterns
of the former president then president on January sixth, twenty
twenty one, were indicative of and should be read broadly
(38:39):
as insurrectionists a like. So there were justices who were
uncertain about that, And that also falls into the larger
umbrella of uncertainty about do we have a definitive conclusion
as to whether or not that day was an insurrection
and whether the former president is therefore guilty of being
an insurrectionist. As I meant earlier, the justices really steered
(39:03):
clear of that. In all specificity.
Speaker 1 (39:05):
Let's get to Melanie in Pittsburgh. Melanie, what do you think?
Speaker 18 (39:10):
Hi?
Speaker 19 (39:11):
I am not conflicted at all. He should definitely not
be on the ballot. And here are my reasons. First
of all, Justice Kavanaugh talked about letting the people decide,
when in fact, mister Trump's very goal in not recognizing
the results of twenty twenty election was to make sure
that eighty million of us didn't decide who was president.
So I'm not real concerned about giving him his due.
(39:35):
Justice Kagan talked about a single state not being able
to decide who wins the election. But right now, electors
can win by a slim majority in the electoral college
and get and that candidate can be awarded the electoral votes,
and that might decide the election. And yet that's okay.
And some of the justices even believe in the independent
(39:56):
state legislative theory, which you know there and then would
basically be eliminating anybody's right to decide. I don't think
it's I thought what I think it was, Justice Kagan, No,
it was a keep. Justice Thomas talked about well you know,
some mother state might call something else an insurrection kick
someone else on the other side off the ballot. I
(40:17):
think that's ridiculous because it's it's clear as day this
was an insurrection, and had they succeeded, it would have done,
you know, anything that the Civil War could have accomplished
in overturning our government.
Speaker 1 (40:31):
Melanie, thank you so much for that call. And vick
A Marriage talks about letting the people decide. I remember
that one of the justices on the court is there
because Donald Trump did not want to let the people
decide the election in twenty twenty and replaced Ruth Bader
Ginsburg as people were already voting. So the idea of say, well,
let's not solve this in the courts, let's let the
(40:51):
people decide in November. What do you make of that?
Speaker 13 (40:54):
Well, again, a lot of people talk as if there
is a national election for president and the majority of
people get their way. Twice in our lifetimes we've seen
the president be someone who lost the national popular vote.
We don't have a national popular election indeed, and this
is something that the justices don't seem to understand themselves.
(41:14):
States don't even have to have elections for electors the caller.
The previous caller mentioned that the Arizona legislature could pick
the electors itself. That's perfectly permissible under the constitution, provided
it's done before election day or on election day, not
after election day. And they're changing the process that was
in place, and it has to be consistent with the
(41:36):
state constitution.
Speaker 2 (41:37):
With state law.
Speaker 13 (41:38):
But other than that, it's up to each state. That's
the You know, I'm not a big fan of the
electoral college. Let's if we want to get rid of it,
we should, But as long as we have it, as
long as we're going to be faithful to the original design,
it vests power in each of the fifty states to
do it the way they want.
Speaker 1 (41:53):
I guarantee you we're going to do a show about
whether the electoral college should exist at some point on
the middle types. But right now, let's go to Gabriel
in the Twin Cities in Minnesota.
Speaker 20 (42:03):
Gabriel, go ahead, Yeah, Hi, So I just wanted to
say that, you know, I think that the Colorado decision
was actually about whether or not Donald Trump should appear
on the primary ballot. Personally, I don't think that a
civic institution or a public institution like the Colorado Supreme
short Court should determine whether or not Donald Trump should
(42:26):
appear on the primary ballot. Personally, I'm conflicted about whether
or not he should appear on the general election ballot,
but I think probably it's best that we determine this
at the ballot box. The other thing that I wanted
to mention is it's really concerning to me.
Speaker 1 (42:41):
You know.
Speaker 20 (42:41):
One of your previous callers mentioned that Elena Kagan owes
her allegiance to Donald Trump. Another one of your callers
said that the Chief Justice is actually Thomas, not Roberts.
To me, that sort of is indicative of how people
don't pay attention.
Speaker 1 (42:59):
Well, you know, I want to give yes, I hear you.
I do want to give our listeners a little credit.
It is a little bit difficult sometimes to keep track
of of all the names as you're talking about the
Spreme Court justices. By the way, you know, they're not televised.
We the only reason we have audio today is because
this was a particularly important case. But Major Garrett, what
about those those comments? And and you know, do you
(43:20):
do you give do you give listeners a little uh,
you know, a little credit if they don't remember all
the justices titles in.
Speaker 5 (43:26):
I do, I do, indeed, Uh, you know, come on,
Jeremy talking to you makes people nervous. Come on, you
know it's not They know they know Tolliver is gonna
fly spack everything on them.
Speaker 1 (43:36):
I forgot Amy Cony Barrett for a second there earlier
in the show.
Speaker 5 (43:40):
So, but to Gabriel's underlying point, I think it's worth
studying for a second. And I was surprised that the
justices didn't even dig into this even a little bit,
because a primary is different than a general election. A
primary is a party construct, Okay. Now, in Colorado they
have a law that's basically like, yes, okay, it's a
(44:03):
party construct, but it has inferences and direct consequences for
the general So they felt, that is to say, the
Colorado Supreme Court under state law, that they had permission
to evaluate this. Several other states have held this whole
question in abeyance because they've decided primaries are party matters,
(44:23):
they are not state matters, and when the general election
comes along, absent to Supreme Court reeling, they might that
clarifies this for once and forever, or maybe just for
this election. We'll see they might step back into it.
So it's not an insignificant point that Gable raises. But
the Supreme Court didn't spend even five seconds on that today,
which surprised me.
Speaker 1 (44:44):
I want to give a chance to our listener who's
calling from Honolulu to get on the air before we
close out this hour, because you know it's Hawaii. Why
not think about Hawaii for a minute here, Tom, Welcome
to the Middle Aloha. What do you think.
Speaker 18 (45:01):
For one thing, Mahallow for putting me on the show
and personally aside, the major gill at my hometown before
moving to the Islands was Gavenport, Iowa. And the one
thing that I have not seen you pre law when
(45:21):
I was in school. But I don't think that Donald
Trump was an insurrectionist. I think he was an instigator
and as part of his instigation, which resulted in the
deaths of three human beings, including a capital cop. I
really think that Donald Trump, if he faces any charges,
(45:46):
should be charged with felicitation of homicide because he caused
the people to show up at the Capitol and three
people died, so he had something to do. By what
a felicitation of the homicide that took place.
Speaker 1 (46:05):
Tom, thank you for that.
Speaker 5 (46:06):
Vick Amr.
Speaker 1 (46:07):
I'll just go to you on that. You know, we're
talking all about insurrection, not insurrection, but how do you
define that and is it is it? Is it going
to be difficult for anybody to be able to define
whether Trump committed insurrection or just instigated or whatever.
Speaker 13 (46:22):
Well, again, we want to we want to know what
the Constitution contemplated when it uses the term, what the
people who ratified the fourteenth Amendment mean. But at the
end of the day, it's really about whether each state
can reasonably implement that term. Even though we might some
of us might disagree about whether Donald Trump fit the
fit the bill or not. The question is whether the
(46:42):
people of Colorado could decide that. Remember if Colorado did
not exclude Donald Trump based on Section three, but they
just said as a matter of state law. Under under
Colorado law, we don't want someone on our ballot who
did X. Whether it's whether it's insurrection or not. That's
permissible under the electoral College because they don't have to
(47:04):
have an election in the first place. They could pick
the electors any way they want, as long as they're
not discriminating on the basis of race or religion or
the like. So I think people can disagree over whether
he's an insurrectionist, but the question is whether the Colorado
people have a right to their answer on that question.
Speaker 1 (47:21):
Well, and we're going to hear more about this. You
can still leave us messages at eight four to four
for middle. And of course, this is not the last
Trump case that may come up before the Supreme Court
before the election. Tolliver, it's time for a quiz for areas.
Speaker 2 (47:33):
We got to get music for this part. Note to Selve.
The fourteenth Amendment enshrined the right to marry whoever you want,
regardless of race. In which landmark case Griswold versus Connecticut,
Lawrence versus Texas, or Berga Fella versus Hodges Are Loving
versus Virginia?
Speaker 8 (47:48):
You know?
Speaker 5 (47:49):
Yeah, so say the question again. I think I think
there's a clause in there that's really important to the
ultimate correct answer.
Speaker 2 (47:56):
We have clause time. The fourteenth Amendment enshrining the right
to marry whoever you want to whoever you want, regardless
of race. In which landmark case Welcome.
Speaker 5 (48:04):
I would say Loving versus Virginia.
Speaker 1 (48:07):
Vikamar, you're the law professor.
Speaker 13 (48:09):
Yes, it's loving versus Rginia. Obert Gafell extended the loving
extended same sex mayor sex couples. But loving was a
very important case in nineteen sixty seven from Virginia.
Speaker 1 (48:21):
That is a Vikamar, professor of law at UC Davis.
And we've also been speaking with Major Garrett Chief, Washington,
correspondent for CBS News and co author of The Big Truth,
Upholding democracy in the Age of the Big Lie.
Speaker 5 (48:32):
Thanks to both of you so much, my pleasure, Thanks,
thank you.
Speaker 1 (48:36):
And next week, Tliver, we have a special edition of
The Middle. It is about a new documentary film called
War Game, which explores the question what if another January
sixth style event happened again, only this time with a
split in military loyalty. I moderated an all star panel
about the film at the sun Dance Film Festival in Utah.
Here's retired Army Major General Linda Singh.
Speaker 16 (48:59):
Military area is a microcosm of society, So for us
to think that it could not happen in the military,
then we're putting our heads in the sand.
Speaker 1 (49:08):
That conversation coming next week on the show.
Speaker 2 (49:11):
Can't wait for that. And by the way, make sure
to sign up for our free weekly newsletter at Listen
to the Middle dot com.
Speaker 1 (49:16):
The Middle is brought to you by Longnock Media, distributed
by Illinois Public Media in Urbana, Illinois, and produced by
Joanne Jennings, Harrison Patino, John Barth, and Danny Alexander. Our
technical director is Jason Croft. Our theme music was composed
by Andrew Haig. Thanks to Nashville Public Radio, iHeartMedia, and
the more than four hundred public radio stations that are
making it possible for people across the country to Listen
(49:37):
to the Middle, I'm Jeremy Hobson. Talk to you next week.
Speaker 3 (50:01):
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