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Interview With Rep. Jamie Raskin (D-MD); Supreme Court Hears Arguments in Trump Ballot Access Case. Aired 1-1:30p ET

Aired February 08, 2024 - 13:00   ET



KASIE HUNT, CNN CHIEF NATIONAL AFFAIRS ANALYST: I would just say that is a political calculation.


HUNT: I get it's two legal things that seem clean, but you put them together and it's like...


JAKE TAPPER, CNN HOST: Hold on. Hold on. Let's go to...


LAURA COATES, CNN LEGAL ANALYST: I'm going to finish my point. Hold on. I'm going to finish my point.



COATES: And then I'm happy to hear you.

But the point of the splitting the baby portion of it is, yes, there are political calculations always at stake for the Supreme Court from the perspective of the voters in the election year. But the question in the immunity is about checks and balances.

The question for the other aspect is, can you disqualify somebody under Section 3? We can parse it out, but they will view, according to their own prerogative, what's political and what's not. That's the unfortunate aspect.

TAPPER: If you are just joining us, this is CNN's breaking news coverage of today's historic U.S. Supreme Court hearings.

The justices seemed to be signaling that they are not inclined to uphold the Colorado Supreme Court ruling disqualifying Donald Trump from the state ballot. The High Court's conservative members suggested they were seeking a way to side with the former president, most likely based on reasoning that does not address the question of whether or not he is or is not an insurrectionist. Let's go back to CNN senior legal analyst Elie Honig.

Elie, you're at the legal Magic Wall there. Did the arguments play out the way you expected them to?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: I think, by and large, they did, Jake.

Look, before the argument, we identified three key questions to watch during the argument. First of all, did Donald Trump engage in insurrection or did he not? We said that it would be unlikely the Supreme Court would want to go deep into this. In fact, they went into it one time.

Justice Jackson, towards the very end of Donald Trump's lawyers, asked a question about whether Donald Trump engaged in insurrection. His lawyers said no. They offered a sort of convoluted definition of insurrection, but that was it.

As predicted, the Supreme Court was much more focused on the procedural questions, starting with, who gets to decide whether and how the 14th Amendment applies? Is it up to the individual states or does it have to come from Congress or some federal source?

And to that end, we heard, I think, a really important sound bite. Let's roll that. We can talk about it on the other side.


KETANJI BROWN JACKSON, U.S. SUPREME COURT ASSOCIATE JUSTICE: What is your argument that it's not? Your reply brief says that it wasn't because, I think, you say it did not involve an organized attempt to overthrow the government.

JONATHAN MITCHELL, ATTORNEY REPRESENTING DONALD TRUMP: Right. So that's one of many reasons, but for an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence.


HONIG: Yes, so there's Justice Jackson asking about the insurrection question. And, again, we heard Donald Trump's lawyer say we don't agree it's insurrection. But that doesn't really go to the procedural point.

Now, as to the question of whether Congress or the states gets to decide, I think it's pretty clear, based on what we just heard, that perhaps all nine justices are leaning towards it's got to come from Congress. We can't leave it to the states. We might have sort of chaos if we left it to the states.

And then the final question was, does the president count as an officer of the United States under the 14th Amendment? This got into the minutiae of what counts as an officer. Does the president count or not? And we heard the justices ask a question about that. Let's take a quick listen to that.


MITCHELL: 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 other constitutional...

SONIA SOTOMAYOR, U.S. SUPREME COURT ASSOCIATE JUSTICE: A bit of a gerrymandered rule, isn't it, designed to benefit only your client?


HONIG: Yes, so the justices did not seem overly impressed with this argument that the president somehow does not count as an officer.

I don't think they're going to address this all as a ruling. One last point, Jake. People may be wondering, when are we going to get an answer, a ruling from the Supreme Court? Well, they always can and do rule whatever they want, but really important date to keep in mind here. March 5 is Super Tuesday.

Colorado, among other states, will be voting on March 5. So I think it's a very safe bet we will get a ruling before then, because I think the Supreme Court recognizes the voters of Colorado and elsewhere have to know if one of the candidates will or will not be disqualified.

TAPPER: All right, Elie, fascinating stuff. Thanks so much.

Joining us now, Democratic Congressman Jamie Raskin of Maryland. He attended today's Supreme Court hearing. He's a former member of the January 6 House Select Committee.

Congressman, good to see you.

So what was it like in the room for the oral arguments and what was your takeaway? And do you agree with our assessment that the court seems to be looking for an off-ramp?

REP. JAMIE RASKIN (D-MD): Well, I agree with the last point. The conservative majority is looking for a way not to have to uphold the obvious, which is that Donald Trump participated in what was obviously an insurrection.

And so the legal arguments abstracted away from that. I think the core of the argument being made by Trump's pretty able lawyer was that you need -- you can't disqualify Trump now, even if everybody agreed he was an insurrectionist. He sort of conceded that. You can't disqualify him now as a state, because Congress could act by two-thirds to remove the disqualification between the point of the election and his taking office, which is a nice splitting-hairs point about the Electoral College.


But, unfortunately, the rejoinder was left on the table. Nobody used it. If that's the case, it's also the case that, under the Electoral College system, the state legislature could decide to appoint electors for him, even if he's not on the ballot.

And, indeed, in the final analysis, the Electoral College can meet in their infinite wisdom under the original constitutional plan and decide to choose him for president. So there would be nothing irrevocably disqualifying about Colorado deciding in its wisdom that he conforms to the constitutional definition of an insurrectionist.

So I thought it was a clever argument, and I think he placed almost everything on it, but I think ultimately it fails. He...

TAPPER: I would just interrupt slightly. He did not -- Jonathan Mitchell, Trump's attorney, did not grant the idea, when it finally came up 52 minutes into his argument, when asked by Justice Ketanji Brown Jackson, he did not grant that the president participated in an insurrection.

He said it was not organized. Justice Jackson seemed to be amused. Oh, so it's OK if it's a chaotic attempt?


TAPPER: And he said, no, he did not buy the argument that it was an effort to overthrow the government. So he did disagree with both Trump participating in it...


TAPPER: ... the idea that it was organized, and that it was actually an attempt to overthrow the government.


Well, I mean, the -- the Republican majority caucus in the House is not organized. Everybody's seen that. But they are the majority.

TAPPER: Right.

RASKIN: And an insurrection is an insurrection regardless of what point in the continuum of organization it appears.

But you're right that he ended up saying that at the end, but my point is simply that, if you look at the atmospherics of the oral argument and also the briefing, they don't place much on the idea that they're contesting either Donald Trump's due process rights in Colorado or the idea that there was an insurrection.

They're really making an argument about the law that no state can disqualify someone for being an insurrectionist because we in Congress could end up acting by two-thirds to remove the disqualification. And my only point to that is, well, that removal of disqualification or his removal from the ballot could also be undone by a state legislature in appointing the electors in the antique system we have got.

TAPPER: Kasie?

HUNT: Congressman, the sort of big picture on this, right, the idea that they're looking for an off-ramp here, it's in no small part because there is this balance around the immunity question as well that the court is going to have to take up. I'm interested in what you think about that.

But I'm also interested in this idea that, in such a divided country, do you think it would be good for the country, for the court to take him off the ballot here at this point, or would that just risk making our deep divisions worse?

RASKIN: So, let me take both of those points.

And the first one is, I think the consensus, at least to the people I got to talk to in the crowd at the court, was that there is a potentially Marbury v. Madison-style Solomonic judgment here, which is to allow him on the ballot, but then to uphold his eligibility for legal prosecution and reject his absolute immunity claim.

Obviously, that kind of political balancing has nothing to do with legal merits, but a lot of people think that it may happen.

HUNT: Somehow, they seem to get there, right?

RASKIN: But on your second point, which actually was kind of raised, I think, by Justice Alito, and, in his terms, the way I understood it was, do you really want to enforce these rules against insurrection? It might cause an insurrection.


RASKIN: It might cause some other states to just blow off the law completely.

But the question of democracy was one considered by the framers of Section 3 of the 14th Amendment. And they saw the threat to democracy coming from politicians who get into office, swear their oath of office, and then try to overthrow the government.

So they saw this disqualification of a tiny number of people as upholding democracy, not discrediting it. And if you think about it, there are more than 100 million people who are disqualified for running for president in America today.

I sit next to Maxwell Frost and Alexandria Ocasio-Cortez. No matter how able they might be, they can't run for president. Barack Obama can't run for president.


CONWAY: It's the most easiest -- easiest requirement to comply with is not engaging in an insurrection.

RASKIN: I mean, how many people have self-disqualified under Section 3 of the 14th Amendment? (CROSSTALK)

RASKIN: Fewer than a dozen today. Maybe a half-dozen.

TAPPER: Just to be clear, you're saying that Frost and Ocasio-Cortez are not eligible because they're not 35 years old yet.

RASKIN: They're not 35 years old.

TAPPER: Right. I'm just explaining.

RASKIN: And Jennifer Granholm, my law school classmate...

TAPPER: Was born in Canada.

HUNT: Canadian.

RASKIN: ... she can't be president. Arnold Schwarzenegger can't be president. That's not democratic.


RASKIN: But it is the rules of the game under the Constitution.


HUNT: But, also, they're not the former president of the United States with a massive number of Americans who really want to reelect him.

RASKIN: Barack Obama is.

HUNT: I understand that, but that's a different situation.

I just mean, what it would cause the country, is that a real concern? Should it be a real concern?


RASKIN: Ah. OK. So, that's the real argument, which is...

HUNT: Right?

RASKIN: ... even if this is the necessary implication of the Constitution, we shouldn't follow through with it because there might be more violence, essentially.

But that's the whole point of having a Constitution. It's supposed to displace violence and fear and intimidation. And we can't act scared of people who are insurrectionists.


COATES: Let me ask you, Congressman.

A lot was said from Justice Kagan, from Ketanji Brown Jackson, and also Justice Thomas about the idea of Colorado specifically, as one state, not being able to take action that will then influence the ability of other voters in other states to then elect a candidate of their choosing.

What did you make of what Kagan called a very nationalistic proposition that this state is ahead of its own skis on behalf of the nation?

RASKIN: I disagree profoundly with that, if that's what she was saying. She was certainly posing that question.

But, look, it would be better for the Supreme Court to act and pronounce upon this. I agree. We should have some clarity on it, so we don't have a repeat of January 6, 2021, and January 6, 2025, on the floor of the House of Representatives.

Having said that, what they're describing as disuniformity is a necessary consequence of our system of federalism. Some states allow former prisoners to vote. Most states do. Some don't. So the states like Florida, which has been -- the legislature has been struggling to keep former prisoners from voting, they're affecting ultimately who's going to become president, right?

TAPPER: So, Congressman, just a quick note. You said that the conservative majority on the court, the six members who have been appointed by Republican presidents, seemed to be looking for an off- ramp.

But, with all due respect, it wasn't just them. I would say that Kagan and Sotomayor, and even Ketanji Brown Jackson, who's arguably the most progressive member of the court, also seemed to be looking for holes in the argument made by Colorado.

I want to play a little sound from Justice Jackson in which she adopted one of Justice Kavanaugh's talking points. Take a listen.


BROWN: The thing that really is troubling to me is, I totally understand your argument, but they were listing people that were barred, and president is not there.

And so I guess that just makes me worry that maybe they weren't focusing on the president. The language here doesn't seem to include president. Why is that? And so if there's an ambiguity, why would we construe it to, as Justice Kavanaugh pointed out, against democracy?


TAPPER: So what's your response? And then I know Steve wants to weigh in.

RASKIN: Well, I think it's always a mistake to conclude from a particular question where a justice's psyche or interpretation is.

I think she was trying to tease out the point that Section 3 of the 14th Amendment was meant in a categorical way to disqualify anybody who had participated in insurrection or violence against the union and had previously sworn in oath of office to hold office again.

And so I think she was trying to get back to -- that was part of her questioning where she was trying to get back to the Reconstruction era context of the Radical Republicans' addition of the 14th Amendment to the Constitution.

STEVE VLADECK, CNN LEGAL ANALYST: You know, Congressman, I want to ask about sort of the moment we find the Supreme Court in.

I mean, you and I used to teach constitutional law together at American University. You mentioned Marbury and the notion that the court is trying to find maybe some kind of political, Solomonic moment.

I guess it seems to me that part of the problem and part of why there's so much discussion of off-ramps is because of where the court is at this particular moment in American history, because of the decline in public faith in the Supreme Court and how the court actually doesn't have as much capital as it might have had at prior moments.

How do you view that as part of the story?

RASKIN: Well, I just don't see how you restore the credibility or the legitimacy of the Supreme Court by saying, in Bush v. Gore, we're going to intervene to stop the manual counting of ballots for the first time in American history because there might not be the exact same interpretive rules being used in one county as another, thereby handing the presidency to George W. Bush.

But in a case where a state Supreme Court has found through excruciating and prolonged fact-finding that a candidate is disqualified by Section 3 of the 14th Amendment, we're not going to apply that. We're just going to say we will leave it up to Congress.

I haven't seen so much deference to Congress in decades.


RASKIN: They strike down parts of the Voting Rights Act, the Civil Rights Act, the Clean Water Act, the Clean Air Act, you name it. They have no problem posting their judicial graffiti all over the handiwork of Congress.


RASKIN: But, here, they say, oh, well the Republicans control the House. Let's let Congress decide.

VLADECK: Ironic for this court to be afraid of its own shadow.

RASKIN: Right.

TAPPER: Congressman, you know you're not allowed to mention Bush v. Gore. They said that was only for that one day.


TAPPER: And no court could ever cite it again. It was not a precedent. So shame on you. You know what you did there.


RASKIN: Well...

TAPPER: There's much more ahead, including a conversation with the lead plaintiff in the Colorado ballot case, a 91-year-old lifelong Republican with a storied political career.


Stay with us.


KAITLAN COLLINS, CNN HOST: And welcome back to CNN's special live coverage of the Trump ballot battle.

We just listened live to the arguments made by both Trump's attorney and the plaintiffs' attorney inside the Supreme Court for several hours here, as several of the justices were expressing skepticism over those arguments. And now we wait to see what they decide.

I want to bring in someone who is at the center of this, maybe the unlikely face of all of this. That is Norma Anderson, a 91-year-old Republican from Colorado who is suing to keep Donald Trump off the ballot and whose name is on these legal filings that we saw at the center of these arguments we heard today.

And, Norma, it is great to have you here with me.


I just wonder. As you listened in, what did you make of the arguments that you heard inside the Supreme Court?

NORMA ANDERSON, LEAD PLAINTIFF IN TRUMP COLORADO BALLOT CASE: Well, I felt there was quite a few very in-depth questions, very difficult questions.

And, yes, they focus on different things, but it is -- I can't -- it's so noisy in my ear, I can't talk.

COLLINS: OK, well, give us a second. We will try to address that, because we definitely want to get your perspective on what you saw here. And we will check on that. Just give us one second, Ms. Anderson, and we will be right back with you in just a moment.

Paula, obviously, she's so notable here, because she is one of these Colorado voters. And she's someone, I should note, who has a storied Republican career in politics in Colorado. She is what -- the face of essentially who is trying to keep Trump off the ballot.

You couldn't really see the attorneys today, but this shows you who it is that's at the heart of this.


And for a long time, this is considered a fringe legal theory, a longshot bid to keep Trump off the ballot. This case, this issue, this particular form of litigation has been in the pipeline now for several years.

It is pretty shocking that we made it here to the Supreme Court. Again, they're looking at this pretty obscure provision, Section 3 of the 14th Amendment of the U.S. Constitution, the so-called insurrectionist ban, something that really hasn't been litigated since like 1919.

So, the fact that this has made it all the way to the High Court, it is a historic moment. Now, I'm not sure if she is going to be on the winning side of this case when all is said and done, but it has been an incredible journey. Her story is amazing. And the story of this case is like the little case that could.

Nobody thought this would end up with the Supreme Court, particularly when you look at all Trump's other legal cases.

COLLINS: And you saw kind of the historical aspect of this and the arguments, in the sense of they're having to go back, when they were truly adding this section to the Constitution and the arguments that were being made among lawmakers as they were debating it.

I think that was in an exchange with Judge Ketanji Brown Jackson, where she and Jason Murray, who is the attorney for the plaintiffs here, for people like Norma Anderson, was arguing that -- whether he's an officer of the United States or just in office, because that matters, because it's whether or not the insurrectionist ban applies to Donald Trump.

And they were referencing a debate where one of the lawmakers asked, well, does it specifically say president in here? And they pointed to the clause about officer of the United States. He seemed to think that worked in his favor. The justices seem to say, no, that shows that there's ambiguity about who this applies to.

REID: Exactly.

And you have to go back to Civil War era, right? And I think one of the things that signaled that this might be game over for the Colorado voters was that Chief Justice John Roberts said that the voters' case was at odds with the history of the Civil War and what he believes the purpose behind this provision may have been, which is to prevent people who had served the South, fought for the South, for the Confederacy from holding public office.

But then they pressed him to look for examples where states had kept national candidates off of ballots based on this. And he was at a loss to give examples. So, it is pretty amazing that you have to go all the way back to the end of the Civil War to think about, what were they doing? Why were they crafting this particular provision?

And, unfortunately, the lawyer are advocating for the voters, he wasn't really able to offer a robust defense of how this modern argument about former President Trump fit into what they were thinking back in the post-Civil War era.

COLLINS: The other part of it seemed to be safeguarding from this happening...

REID: Yes.

COLLINS: ... states deciding how to apply the insurrectionist ban and who they believe it applies to.

We have seen Illinois voters try to say that it applies to President Joe Biden. And that seemed to be where he was saying, well -- the pushback that I noticed from the plaintiffs' attorney, Jason Murray, here was, well, we have never seen a president do this before. This is historical, in and of itself, and that that's not something you're going to be seeing every single day.

REID: You hear that a lot, right, with a lot of the Trump cases. It's always unprecedented. Well, we have never been here before.

I think you raised a really important point. There's a lot of concern about if states can choose who is and is not on the presidential ballot, that gives states a lot of power over federal elections. And even Justice Kagan raised this question to one of the lawyers, just saying, look, do we really want to have a state give -- give them the power to decide who runs in presidential elections?

And I think -- I believe it was Justice Alito who suggested that this is really one of the reasons they took up the case, was because they don't want all this ambiguity and chaos across 50 different states.

COLLINS: And we have seen that play out with -- this is all centered on Colorado, but it does have national implications in the sense of what we saw happen in Maine, where the secretary of state made that decision.


She is not an attorney, as well-intentioned as she may be in carrying out what she believes are the duties of her office. But she was -- even they were saying, Maine's Superior Court, wait and see what the Supreme Court decides.

It just speaks to the gravity of the decision that they are making here and how many states it could affect.

REID: Yes, and this is what they're designed to do.

They're designed to resolve constitutional questions, right, where there's ambiguity. Obviously, there's ambiguity here, right, because this has been litigated in over a dozen states with different outcomes, and then also to settle the law when there are disputes among states. So this is what they do.

And, hopefully, they can offer some clarity soon. Now the question is, how long will it take them to get back with a decision? Nobody knows, right? They do what they want.

COLLINS: What's the guess of how long it could be?

REID: So, my guess is, they would like to offer voters some clarity, perhaps before Super Tuesday. But I think really it's going to come down to how long does it take Chief Justice John Roberts to build a coalition, to build consensus?

Because, again, this court is under enormous scrutiny over ethics concerns, over accusations, some well-founded, about partisanship. This is arguably the biggest test of his career. So, they need to issue an opinion here. But he is going to be under such pressure to build a coalition so this does not look partisan.

And I think you and I both heard, I mean, there's a possibility they might be able to get somewhere all nine justices will align. That will likely be very narrow. But that could take time. And it may not happen before Super Tuesday.

But I would think they would like to offer clarity, so voters don't go into the ballot box on Super Tuesday not knowing if the candidate they're going to vote for is going to be on the ballot in the general election.


OK, Paula Reid, stand by, because I think we may have Ms. Norma Anderson back with us. Of course, she is at the center of this.

Ms. Anderson, it's Kaitlan Collins from CNN. Can you hear me? OK, we will continue to try to connect with her.

ANDERSON: Yes, Kaitlan. I can hear you.


And we were talking about your reaction to this as you were listening to this. And I just -- I think it's important for people who are watching to know who you are. You were a trailblazer in Republican politics in the state of Colorado.

Why was this argument so important to you on whether or not Trump belongs on the ballot?

ANDERSON: It's just very basic with me. It's defending our Constitution.

COLLINS: It's really -- go on, Norma.

ANDERSON: It's hard to talk over the noise. I'm sorry. COLLINS: That's OK.


COLLINS: Norma...

ANDERSON: It breaks my concentration.

COLLINS: I completely understand.

ANDERSON: Because the minute you start talking, I start getting this background noise.

COLLINS: I completely understand.

ANDERSON: And I'm listening to it, instead of trying to answer your question.

COLLINS: Yes. Technical difficulties are not fun. I promise we will work on that, and we will try to bring you back in.

You had this great quote about why you were behind this and how many presidents you have lived through and what you wanted to see. We will continue to talk to you about that hopefully after the break.

Ms. Norma Anderson, thank you. Paula Reid, thank you as well.

CNN's special live coverage of this ballot battle that Trump is now facing with the Supreme Court here right behind us will continue after a quick break.