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Supreme Court Leans Toward Trump In Ballot Eligibility Case. Aired 2-2:30p ET

Aired February 08, 2024 - 14:00   ET




BRIANNA KEILAR, CNN ANCHOR: Welcome to CNN NEWS CENTRAL. I'm Brianna Keilar in Washington alongside Boris Sanchez. And today we are witnessing history at the Supreme Court. Unprecedented oral arguments have wrapped on whether a state can bar former President Trump from running for president under the 14th Amendment's insurrectionist ban.

BORIS SANCHEZ, CNN ANCHOR: And based on the stinging questions from the justices, liberal and conservative alike, the court seems highly sceptical of Colorado's decision to remove Donald Trump from its Republican primary ballot, and fearful of the Pandora's box it could unleash in national elections going forward. We have a full slate of reporters and analysts tracking this. Let's start with CNN Central. Let's start with senior Supreme Court analyst Joan Biskupic. She was inside the court for those arguments. Joan, we could hear their voices.


SANCHEZ: And in some of those questions, there was some connotation of disbelief, you could say. But you were in the room and you saw their facial expressions. Walk us through what you saw.


BISKUPIC: Pretty early on, you could sense that the momentum was with the Trump side. The Trump legal side, I should stress. Not Donald Trump as he appeared, trying to defend himself on the acts of January 6th, but the legal history here behind the 14th Amendment Section 3 that the Colorado Supreme Court said should bar him from running again. And it only got more and more. His lawyer didn't face the kind of scepticism we usually hear from justices who are critical of different positions. And then, when Jason Murray got up to represent the Colorado voters, that's when you could really feel like the case was almost over.

You know, it really felt like it ended pretty early. And then, in terms of the atmospherics in the room, the justices were not interrupting each other much. They were kind of pulling back, even though they had started the morning kind of on the edge of their seat, waiting to hear the arguments. And remember, to reverse the Colorado Supreme Court, the Supreme Court has to find only one flaw. Just one, anything, of the multitude of grounds that our audience heard today, only one, and that will send it back. But let me just go to, with one comment from Justice Elena Kagan on the left. And this will kind of give you a feel for the sort of scepticism that came to the Colorado voters.


ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. If you weren't from Colorado and you were from Wisconsin or you were from Michigan, and it really, you know, what the Michigan Secretary of State did is going to make the difference between, you know, whether candidate A is elected or candidate B is elected, I mean, that seems quite extraordinary, doesn't it?


BISKUPIC: You know, there were very practical considerations, as Justice Kagan raised there, but there were always also historical ones. And they came across the whole bench, even to Justice Ketanji Brown Jackson.

KEILAR: Paula, what did the questioning tell you about whether or how the justices may be touching of these myriad issues, the one about whether or not Trump is an insurrectionist?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Going into today, it was widely expected that the justices would want to avoid this issue and instead focus on more constitutional questions where they could build consensus. And that was largely true. But one justice, Ketanji Brown Jackson, she actually did raise this issue at the very end of Trump's lawyer's argument. Let's take a listen.


JONATHAN MITCHELL, ATTORNEY REPRESENTING DONALD TRUMP: President Trump did not engage in any act that can plausibly be characterized as insurrection.

KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: All right. So why would this not be an insurrection? 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.

MITCHELL: 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. And this--

BROWN JACKSON: So, the point is that a chaotic effort to overthrow the government is not an insurrection?

MITCHELL: No, we didn't concede that it's an effort to overthrow the government either, Justice Jackson. None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful. Criminal, violent, all of those things. But it did not qualify as insurrection, as that term is used in Section 3.


REID: And it's notable she asked about it because she was a federal trial judge after that initial batch of arrests following January 6th. She oversaw some of those cases before she was elevated, and she made it pretty clear how serious she thought January 6th was, what a threat it represented to democracy. So, it would be surprising if the justices really tackled this issue, but she did at least get on the record with that question.

SANCHEZ: Harry, to you, you were also in the room, and you mentioned to us a moment before we went on air that you actually co-clerked with Elena Kagan for Supreme Court--



SANCHEZ: -- Justice Thurgood Marshall. You heard the exchange that she had with Jason Murray there. It didn't seem like he satisfied her question. What does it mean when a liberal justice asks a question of someone representing Colorado voters, the decision made by the Colorado Supreme Court, and she finds that answer insufficient?

LITMAN: Yeah, I think it means the whole court, more or less, wants to go that way. But they're casting about. Joan's, of course, right. All it takes is one. But the really interesting part of the three hours of argument is they're casting about for what that one might be. And Chief Justice Roberts is going to dearly want the court to coalesce around one rationale. And will they do that? This is one of these historic cases where you want the court as much as possible to speak in one voice. The thing that was interesting to me about the argument is the missing man, Donald Trump.

And the missing kind of text, sort of as Paula says, did he engage in insurrection? Are the terms of the 14th Amendment, Section 3 met? Basically, that was all set to the side. And they were looking at different things, pre-emption, very legalistic reasons to just get this off their plates. Because everyone assumed with Kagan, if they were to affirm the cascading effects would be mayhem on the election. And that's something they dearly don't want to hear. And that's something they're going to be responsible for doing.

KEILAR: Maybe a missing man, Harry, but a very present case, right, which is the Griffin case. And this was mentioned. I just turned it around there, I know. But this is very important because this goes to the heart of what is Congress's role? And I think this is something that actually a lot of voters and people who are just sort of interested in following this maybe have not considered in this. What is Congress's role when it comes to this particular part of the Constitution? What did that line of questioning from the justices inform you of? LITMAN: All right, here we go. Now, Alito really seems to be into this. The Chief Justice of the United States, after he had retired, and he was sitting by designation as a Court of Appeals Judge decides Griffin's case. And he basically says Congress is the entity that must decide this. And then Congress enacted something. That's all gone away. But it now goes to the historical point, is it Congress that has to do something in order to authorize at least a state, at least Colorado, to have this impact of taking a federal official off the federal ballot? That's, I think, where Alito stood. But, again, we had five or six different possible rationales, and they're really casting about for common ground.

SANCHEZ: And that came into play when Chief Justice John Roberts asked the question, the hypothetical, about whether someone, a self-admitted insurrectionist, could be on the ballot. I found that to be an interesting exchange.

LITMAN: Great hypo (ph), because I'm a self-admitted insurrectionist. I sign it there. I come to the Secretary of State. Well, I wanted to let you guys know first. And I say I'm a self -- but what he was really getting at was power. Can a single Secretary of State, even with phenomenal proof, just say, Okay. You're off the ballot with all the cascading effects they assumed would happen when one state does that. So, it was actually a way of expressing doubt about the prospect that one state could bind others, even with the strongest of proof. It goes to the general point. They don't want to deal with proof. They don't want to deal with whether Trump engaged. They want out of anything having to do with Trump. But still, they want to reverse.

KEILAR: There was a question of Colorado's solicitor general who was defending the ruling, obviously, to remove Trump from the ballot in Colorado on the primary. That really seemed to be getting at this question of whether the way this happened in Colorado violated Trump's right to due process or not. And I wonder what you guys thought about this exchange with this solicitor general saying, well, there was a five day trial and whether you think that'll hold muster.

BISKUPIC: It won't, but it doesn't matter. Because as Colorado voters admitted right from the start and the Colorado solicitor general knows, it's not up here on a due process question. You know, there were claims from Donald Trump early on that his due process was violated, but that's not a core issue here. But where it goes to is this idea of how fair any process would be when they're thinking the more global question of how can one state do this and then have that inform Wisconsin, inform Illinois, inform Maine, whatever.


But originally when this case, uh, when it was first heard, you know, the Trump forces felt like this five-day trial was not fair. One other thing I will mention about the Colorado solicitor general, the justices gave her time. They weren't going to give -- usually it's just the two parties but the secretary of state said, you know, we should really be in on this case. We know what Colorado wants so they gave the solicitor general time. But boy, I don't know if you could tell when the questioning was coming, they had nothing. They had nothing to ask her. It was like we're done, we're done. So, it just kind of showed that the train is moving and it's fast.

SANCHEZ: Yeah, we want to get a read on the missing man as Harry alluded to him in these arguments. Let's go to West Palm Beach now with CNN's Kristen Holmes who's been tracking reaction from Donald Trump, the former president. He answered questions from reporters. He gave a very winding reaction, a winding statement hit on a number of different things. What did he say about the Supreme Court case?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Yeah, hit on a lot of different things not all of which were about the Supreme Court. Very quickly turned into a campaign speech. He linked all of his legal problems together, calling them election interference, which is unsurprising. He also had a very revisionist look at January 6. But he did comment on those arguments. I am told that he was watching them and that he thought they went well. Here's what he said:


DONALD TRUMP, REPUBLICAN PRESIDENTIAL CANDIDATE: Well, I'm a believer in our country and I'm a believer in the Supreme Court. I listened today and I thought our arguments were very, very strong. An argument that is very important is the fact that you're leading in every race, you're leading in every state, you're leading in the country against both Republican and Democrat and Biden. You're leading in the country by a lot. And can you take the person that's leading everywhere and say hey we're not going to let you run? You know, I think that's pretty tough to do but I'm leaving it up to the Supreme Court.


HOLMES: Now obviously some of the arguments we heard were not about the fact that he was leading, it was all about whether or not they could actually take him off the ballot in general. But this is something he has continued to argue, again across all of his legal cases, that this is just because he is the front runner that Democrats don't want to run against him. I will note it was very interesting that he didn't go to the Supreme Court today.

That was clearly a calculated decision as we have seen time and time again, he has used these various cases, the defamation case in New York, the civil fraud case in New York, as really campaign stops, opportunities for him to talk about political persecution. While he did talk about it, he did so at his home in Florida, not in front of the court. You hear him continuing to say he has this high level of respect for the court. It's also an indication of how his team is handling this particular case very differently as they are arguing in front of the highest court in the land.

SANCHEZ: Well, one last question to Paula: what happens next?

REID: Well, we will get an opinion at some point. There's some expectation that they might want to give voters some clarity ahead of Super Tuesday but really the challenges for the chief justice to find a place wherever it may be where he can build consensus and that could take some time. That's what's next for the justices. What's next for the Trump team? Well, they're going to turn around and tonight they need to now start working on a different case that they intend to appeal to the Supreme Court. That is the issue of presidential immunity. They just lost that at the circuit. They've signalled they will appeal to the Supreme Court.

Also, an open question if they'll first ask the full circuit. The circuit tried to make them a little harder for them to do that but that's something they could litigate. Well, why-- what gives you the right to deprive us of that step now? They don't expect that they will win on the merits here, but it is of course all about delay, delay, delay and just though another reminder I mean the Supreme Court really such an enormous influence on this 2024 election cycle.

SANCHEZ: Yeah, still a lot to stay tuned for, everyone thanks so much for the perspective, much appreciated. Harry, you're an insurrectionist, I can't believe it. Still ahead on CNN NEWS CENTRAL, we're staying on top of all of the analysis and headlines out of the Supreme Court. Plus, CNN is live from the U.S southern border in Texas. What residents are saying about the border deal that died in the Senate and what should happen next? Plus, in Vegas, the stars are out. We're hearing from Super Bowl performers Post Malone, Usher, and Reba McEntire. We are heading to Vegas in just moments.



KEILAR: Legal experts largely agree that the Supreme Court's ruling on whether former President Trump can remain on the Colorado ballot will have nationwide implications. But what is less clear is whether the decision would endanger his ballot eligibility in other states. We have CNN political director David Chalian to join us now and dig through that and more. First off, though, I was hoping that you could address a hypothetical that we heard in court today from Justice Elena Kagan.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Yes. So, you played in the last segment where Justice Kagan was probing this notion of, so how could it be that just one state could actually decide the election? Let's say it wasn't Colorado. Let's say, and she used examples of battleground states, Wisconsin or Michigan. And let me just show you how not bizarre or outlandish hypothetical that is. So, this is our road to 270. This is our current race ratings. If it's red or pink, it's leaning towards Trump or it's safely in Trump's camp. If it's light blue or dark blue, it's leaning towards Biden or safely in Biden's camp. And the yellow states are the true toss-ups right now. Okay, Brianna? So, I just want to fill in some of that hypothetical.

Let's say Donald Trump actually were to win in Arizona. So, he wins the whole Sun Belt. We have Nevada leaning his way, Arizona, Georgia, those competitive states go Trump. Let's say this congressional district in Nebraska goes to Biden in the Omaha area. Okay? And now let's say Biden restores a bit of the blue wall and Pennsylvania and Wisconsin indeed fall to Biden.

[14:20:09] Now we have Michigan leaning to Trump right now, but if Trump were invalidated from the ballot in Michigan, like Elena Kagan said today, well, look what happens. He drops down to 268. This then becomes whoever wins Michigan would win the presidency in this scenario. So this does become a decisive state. And that is not something that's sort of out of the realm of possibility.

KEILAR: Yeah, so it's important when she brings that up and we can walk through that there. The state, of course, at the heart of this case here, Colorado, so would that have real impact in the battle for 270 if Trump was not actually on the ballot there?

CHALIAN: So, I mean, it could. We'll see how the race plays out. But right now in our race ratings, we have Colorado leaning blue. Joe Biden won it last time by a pretty significant margin. It's not clear that the Trump people are going to fully campaign here. So, honestly, look at Donald Trump's number. I mean, if it were a battleground state, if it stays blue, it doesn't really affect Trump's number whether he's on the ballot or not if, indeed, it is leaning towards Joe Biden.

KEILAR: If, obviously, Colorado were to stay. I mean, right now, looking at the justices, it seems clear they're leaning in one direction. But if Colorado gets to do what Colorado wants to do, other states might say, hey, we want to go that direction, too. So, it's not just a matter of Colorado. But Maine, as well, where the Secretary of State has said that Trump is ineligible to appear on the ballot, what kind of implication would that have?

CHALIAN: Maine is one of the two states, Maine and Nebraska, that give out their electoral votes by congressional district. Donald Trump, actually, in the second congressional district in Maine, up in northern Maine, we have in our ratings, it's currently leaning his way. He won this electoral vote in Maine four years ago in 2020. Watch his total. In our ratings right now, he's at 272. He's barely winning the presidency again in this scenario.

So, obviously, if he's off the ballot, and can't win that electoral vote, if instead Joe Biden were to win that electoral vote, obviously, he would need to fill in the map. But when you're dealing with this close of a race, even losing that one electoral vote gives Donald Trump almost no cushion here. So, he would have to make sure he's winning some of these other clearly toss-up states on the map.

KEILAR: It's so helpful when you take us through the map like this, David. Thank you so much. Boris.

SANCHEZ: Let's expand the conversation now with Dave Williams. He's the chair of the Colorado Republican Party. And he's opposed to the decision by the Colorado Supreme Court. Dave, great to meet you in person. We've talked about this before. You're obviously in favor of keeping Donald Trump on the ballot in Colorado. You're in the room here today, which is great. And you were also in the room for the arguments made before the court. What did you make of what you heard?

DAVE WILLIAMS, CHAIR OF THE COLORADO REPUBLICAN PARTY: You know, I think what we witnessed unfold were thoughtful, deliberative questions from all the justices. But clearly, the momentum was in favor of Donald Trump and the merits that we had presented in our briefings alongside him.

SANCHEZ: It's interesting to me that it got this far to the Supreme Court because, as Jason Murray, who was arguing the case for the Colorado Supreme Court, pointed out, Donald Trump had the opportunity early in the case when it was still at the local level to present witnesses, and he opted not to. It didn't seem like he fought that case as thoroughly as he possibly could have. Do you think that was a mistake in letting it get this far? Should the Trump team have gone after this case earlier?

WILLIAMS: Well, the Trump team did, in fact, bring witnesses. They brought their own experts. They even appealed the initial trial court decision to the Supreme Court on the findings of fact as well. So, they did present a case and a defense for what was being accused by the petitioners. So, I don't necessarily think they made a mistake. I just think they understood that the court system in Colorado was probably going to be biased against them.

SANCHEZ: There was a hypothetical that I found interesting that was brought up by Chief Justice John Roberts, and he asked Jonathan Mitchell, who is arguing Trump's side, whether a self-admitted insurrectionist, someone who says, I want to undo the Constitution of the United States, could wind up being eligible to be on a ballot. I'm wondering if you think that's right. Someone that, you know, let's go back in time, post-Confederacy, someone who says, I want to secede from the Union. Do they belong on a ballot?

WILLIAMS: Well, obviously anyone that engaged in an actual rebellion against the United States shouldn't be holding these offices or running for office. But I think the point of that question was to get at whether or not one person, a Secretary of State, or a small group of people could actually disqualify someone like Donald Trump, who is leading in the polls.

SANCHEZ: So, your argument would be that January 6th wasn't an insurrection. It's an argument that's been made multiple times, including today, by Jonathan Mitchell. He said that it was a riot. Would you want the Supreme Court to weigh in on that and sort of give their thought on what happened that day to sort of clarify their position?

WILLIAMS: You know, I could see a scenario where it's helpful that they would weigh in on it, but I also think we really don't even get to that point if we just look at the law itself. If we look at the merits of the case and we follow the arguments that were put forth by Donald Trump's team, especially our briefings that we put forward in the Supreme Court, then I think really it comes down to does this 14th Amendment, Section 3, even apply to President Trump or any other president?


SANCHEZ: So you're in favor of a much more narrow ruling where they don't even look at the question of insurrection. Do they look at whether the 14th Amendment is self-executing? Because there's a question there as well. It's ambiguous.

WILLIAMS: Yeah, I think they absolutely should focus in on that question because we can't have 50 different policies for 50 different states on how to adjudicate this specific question.

SANCHEZ: Is it possible, though, that some of the arguments that they made in favor of the 14th Amendment, I say they generally in court today, in favor of the 14th Amendment being self-executing could potentially remain ambiguous, that they make a much more narrow judgment based strictly on the question of whether Trump is an officer or not? Would you be in favor? What do you think?

WILLIAMS: Well, ultimately, we want him on the ballot and however we get there is certainly helpful. But this question does need to be put to bed. This is an amendment that was put forward post-Civil War. No one, I think, really thinks it should be applied 100-plus years later to a sitting or former president who they're accusing of insurrection. It's just it was never contemplated for this.

SANCHEZ: It, at this point, appears based on their questions that we are headed toward a situation, most likely, in which we're going to have a lot of people who are going to vote against the Supreme Court sides with your view of the law if they don't. And Donald Trump is removed from the ballot. What's the party's plan moving forward?

WILLIAMS: Well, it would be uncharted territory for us. We would certainly look at caucusing and removing ourselves from the primary so that we could allow our voters to decide which candidate they want to support and ultimately send delegates to the national convention. But the bigger problem is what happens for the general election. And the other thing that the justices talked about, which I thought, was very thoughtful, is the cascading effect that it would have if they upheld the decision by the Colorado Supreme Court. I think it would be a constitutional crisis in the making. It would create chaos all over the country. And it would have a retaliatory effect with Republican states looking at getting rid of Joe Biden on their ballots. We can't go down that road, and we certainly hope the Supreme Court doesn't.

SANCHEZ: Dave Williams, we have to leave the conversation there. I appreciate your perspective. Thanks for sharing it with us.

WILLIAMS: Thank you Boris.

SANCHEZ: Of course. Still to come this afternoon, a warning to humanity over the climate crisis. But as the planet gets hotter and hotter, scientists just made a huge leap toward limitless clean energy. We'll explain in just moments.