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Early Start with John Berman and Zoraida Sambolin

Supreme Court Poised to Have Major Impact on Election; Colorado Applies 14th Amendment to Top Presidential Candidate. Aired 5:30-6a ET

Aired December 21, 2023 - 05:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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[05:30:22]

JOHN AVLON, CNN ANCHOR: Good morning, and grab that coffee. Thanks for getting up early with us. I'm John Avlon in for Kasie Hunt.

Now, the Supreme Court may end up being the final decision maker in the 2024 presidential race, at least regarding the fate of GOP front runner Donald Trump, which hangs in the balance. The Court is at the center of some major decisions, multiple, whether Trump's even eligible to be on the ballot. And if he's immune to being prosecuted by Special Counsel Jack Smith for actions he took his president. These issues stem from, of course, Trump's effort to overturn the 2020 election on the basis of a lie, actions that he took that ultimately led to the January 6 attack on the U.S. Capitol.

Here to break down all things legal, couldn't ask for anyone better than Defense Attorney and former Federal Prosecutor Shan Wu.

Shan, it's great to see you. And thanks for getting up early with us. You know, I what I want you to help decipher is all these dueling cases. We've got the Colorado ruling. Jackson's immunity request, all raising broader questions about the role of the Supreme Court in our elections. If you thought it was over in 2000, you got another thing coming. And you had a great piece yesterday in "The Daily Beast" saying the Supreme Court might be able to redeem itself here. So what -- what -- what's your thinking? Break it down for us?

SHAN WU, DEFENSE ATTORNEY, FORMER FEDERAL PROSECUTOR: Well, I think the court obviously is suffering basically a bleed out of his credibility at this point. And the point about redeeming is, they traditionally as you know, have taken a very stingy view of their jurisdiction, they don't want to reach out when they don't have to, they don't want to rule more broadly when they don't have to.

So what they could do here is as they face this whole -- whole bellwether test of their credibility going on right now, and these important cases, is to take a narrow view. So let's start with the Colorado one, for instance. Appellate courts, including the Supreme Court, very reluctant to overturn factual findings. They could really rely on the really extensive factual findings that the Colorado court used to say that Trump had engaged really an insurrection or given aid and comfort. And therefore should be barred from the Colorado ballot. They could really limit it to relying upon that, rather than having to delve into these major constitutional questions which are unlikely to ever -- to be repeated, is the President officer of the United States, common sense says, yes. You could really get --

AVLON: Not just that, by the way, the debate over the ratification.

WU: Right.

AVLON: A senator asked a question, and it was clarified that included but nerdish point of order. But go on.

WU: Exactly. They don't have to reach that. They could really try and keep the focus narrow on, was this a good factual basis? And more broadly, let the states do what they're supposed to do, which is they manage elections. So let the states manage elections. The counter argument, of course, is, oh, that could lead to a crazy, you know, quilt work across the country. Some states ban them, some states don't. Well, that's exactly what's happening in Dobbs, for example, when they overruled Roe versus Wade, let it go back to the States. So you get 50 different versions of things that ought to be OK with them.

AVLON: Yeah, well, if philosophical consistency applies. I want to get your reaction to something that former Attorney General Bill Barr said to our colleague Jake Tapper, about why he feels that this was an irresponsible decision, despite the fact that he now we should say strongly opposes Trump for the Republican nomination. Take a listen.

(BEGIN VIDEO CLIP)

WILLIAM BARR, FORMER U.S ATTORNEY GENERAL: I think this kind of action of stretching the law, taking these hyper aggressive positions to try to knock Trump out of the race are counterproductive. They backfire, as you know, he feeds on grievance just like a fire feeds on oxygen and this is going to end up as a grievance that helps them.

(END VIDEO CLIP)

AVLON: Shan, do you think he's right? Could this backfire?

WU: Yeah, I think, John, that's a great example of how you shouldn't let politics affect what you're doing in the law for judges or for prosecutors. The Colorado situation is not a law enforcement issue. It's a private lawsuit that's been brought. And a lot of these arguments that, oh, the more you do to stop Trump or apply the law to him, it helps him. So we shouldn't do it. That really doesn't make any sense. I mean, that really goes against the notion of the law treats everybody equally. I mean, you have to apply the law, and if there are political consequences to it, which there are here, then you let those happen.

[05:35:00]

AVLON: This is his uphold justice and let the heavens rain. That's certainly an idea they have applied in other cases. Well, we'll see if they do here. To that point, and your broader point about philosophic continuity, I was struck by a column by the Atlantic's Adam Serwer on the Colorado ruling specifically. And he said that the rulings written consciously, the Colorado ruling with an originalist interpretation, written for essentially the conservative justices on the Supreme Court who say they read law that way. First, do you agree with that assessment of the opinion? And how might that impact justices opinions if they are being philosophically consistent?

WU: Well, I love that take. I think the opinion is very smartly written that way. And even cites justice Gorsuch, one of those earlier opinions. However, when it comes to how the conservative group uses the texts, the textual reading originalism, they really just willed that for any purpose that they want. And I think that's where the problems going to be. Because ultimately, of course, if you're interpreting the text, and you say, I'm interpreting it with the original wisdom in mind, you still get to interpret it any way you want.

So I don't know that that's necessarily going to sway them philosophically. Playing reading, I think it's an easy one for them. And if they're going to be intellectually honest about it, they can certainly say, hey, the originalist reading words mean, what they mean. I think a really interesting point here, John, about these counter arguments saying, not enough due process for Trump before he's removed.

Also, the idea that you might have to have a criminal conviction. He wasn't charged with insurrection. I think Professor Tribe made a really good point on this recently, which is that the disqualification is not a sanction, it's not a punishment. And so arguably, you don't have to deal with these issues of, do you need the conviction? How much process was doing? It's simply a qualification, like age or where you're born?

AVLON: That's fascinating. And Michael Luttig, former judge, conservative judge said that it's self-executing, removing another objection, some folks are hearing.

I want to throw up this graphic because there are three Trump related cases that the Supreme Court could hearing that could have massive impacts on the 24 election. I just wonder, what do you see as the most consequential and -- and do you think there is a chance, a danger, in effect that the Trump's delay strategy could push key decisions around his accountability for January 6, because of his election lies, too, after the election? And could that be a case where, you know, delay is denial of justice?

WU: I think the chances for delay are very high. They always have been --

AVLON: Past the election, though?

WU: Well, I think if you get close enough to the election, that that's going to happen. Because I don't know that they're going to want to be trying things within like let's say, you know, a month or something of the election.

AVLON: Sure.

WU: I think that delay tactics are, you know, very smart on his team's part. And really, for the DOJ cases, they always faced a very high bar here because of the speed that they had to move at no chance at all in Mar-a-Lago case is going to go in time. The best-case scenario is the D.C. One of those three cases, actually, I think the presidential immunity one is not likely to give Trump complete protection. I don't think that the Supreme Court is going to end up getting a huge swath of broad immunity to any president.

However, the obstruction issue before them, which is, is very complex reading of what is the meaning of the word corruptly. Can the obstruction be these violent acts? Was Trump connected to those? That really could pose some hurdles for Smith's charges? Because if they say that the violent protesters are out from under that, it's going to be a harder reach to get Trump under that statute, the obstruction proceedings.

AVLON: All right. Well, we'll be watching closely and relying on your wise insight. Shan Wu, thanks a lot for getting up early with us. Thank you.

WU: Nice to see you.

AVLON: All right. Now, the nation is in uncharted territory after the Supreme Court's -- Colorado Supreme Court's, rather, historic ruling to remove former President Trump from their 2024 primary ballot.

Now, the U.S. Supreme Court, of course, is expected to take up the case. And it's not the first time the high courts had to step into presidential politics. But it does seem to be the most dire. CNN's Brian Todd has some crucial context for us.

(BEGIN VIDEOTAPE)

DONALD TRUMP, (R) FORMER U.S. PRESIDENT: We did nothing wrong.

BRIAN TODD, CNN CORRESPONDENT: Donald Trump has again put the United States in uncharted waters, never before in American history has the 14th Amendment to the Constitution, the so-called insurrectionist ban, been applied to a top presidential candidate. But then again, no American president has ever tried to overturn an election, as Trump did. What is the 14th Amendment?

[05:40:03]

PROF. STEPHEN VLADECK, UNIVERSITY OF TEXAS LAW SCHOOL: This forward- looking rule that if you have engaged in insurrection against the United States, you may not hold federal office unless two-thirds of both chambers of Congress say you can.

TODD: Specifically, Section 3 of the 14th Amendment says. no person who's previously taken an oath to support the Constitution shall hold any office who has engaged in insurrection or rebellion against the Constitution, or given aid or comfort to the enemies thereof.

And the Colorado Supreme Court has ruled, that's what Trump did on January 6, 2021 when he implored his supporters to go to the Capitol.

TRUMP: We're going to the Capitol.

TODD: The 14th Amendment was ratified in 1868, another period of raw political turmoil.

DOUGLAS BRINKLEY, PRESIDENTIAL HISTORIAN: Those reconstruction amendments in 1868, came about because our country was torn apart in the Civil War.

VLADECK: When Congress drafted Section 3 of the 14th Amendment, it was already worried about the problem of southern states. If you had been part of the Confederacy, send it back to Washington. Officials who had fought for the Confederacy, officials who had been leaders in the Confederate government.

TODD: In 1870s, Zebulon Vance, who had served in the Confederate army was appointed as a senator from North Carolina, but the Senate refused to seat him citing the 14th amendment. Vance later got amnesty and did end up serving in the Senate. In the early 1900s, Victor Berger, a socialist from Wisconsin was refused a seat in the House of Representatives twice after having been elected. His opposition to World War I had led him to be criminally charged with disloyal acts, and the House use the 14th Amendment to keep him out. But he eventually got his conviction overturned and did serve in the House.

More recently, a county commissioner in New Mexico was removed from office in 2022 on 14th Amendment grounds, because he actually was a convicted January 6 rioter. Now, we have the possibility that the U.S. Supreme Court will take up the Colorado ruling and decide whether Trump can be on state ballots. It would be the first time since Bush versus Gore in 2000, that the Supreme Court would have weighed in on such an important matter in presidential politics.

BEN GINSBERG, REPUBLICAN ELECTION LAWYER: The country is much more divided now than it's ever been before. I

mean, in a sense, if you're a Supreme Court justice, it makes Bush versus Gore look like a walk in the park.

TODD (on camera): Donald Trump has denied doing anything wrong on January 6, and as of now he's not been convicted of any crime related to January 6. But Legal Analyst Stephen Vladeck says at least one of those previous cases where Congress has denied seats to people based on the 14th Amendment is an indication you don't have to be convicted to be prevented from holding office under that amendment. Brian Todd, CNN, Washington.

(END VIDEOTAPE)

AVLON: Fascinating. Ex-President Trump saying things on the campaign trail that would probably sink any other candidate, but what the voters are saying, that's next.

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[05:47:06] AVLON: We've got new polling from Iowa just weeks ahead of the first of the nation caucuses. They're indicating that Trump's recent incendiary remarks that immigrants are, quote, "poisoning the blood of our country." Haven't heard him among GOP voters, actually quite the opposite. According to a new NBC Des Moines Register poll, 42% of Republican voters in Iowa say they're more likely to support Trump following his anti-immigrant rhetoric.

Let's bring in CNN Political Commentator and Spectrum News Host Errol Louis. Errol, what do you make of that?

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Listen, John, there's a theory about those who resort to demagogue tactics, that they're being led by the crowd rather than the other way around. And I say that only to point out that I've seen Donald Trump do this. I certainly watched that arena in Cleveland, back in 2016. And he says what he senses the crowd wants to hear. So this just confirms that that phrase that he sort of threw into the middle that so many of us found jarring was not something that he necessarily pulled tested. But he sort of field tested it. And once the roar came from the crowd, and the approval came from the crowd, he made it part of his stump speech. We're going to hear it over and over and over again from him, as long as his voters indicate that that's what they want to hear. And it sounds like the polls are just confirming that reality.

AVLON: Yeah, and of course, I mean, to your point, this wasn't a gaffe, it's been repeated. It's in the script. It's in the prompter. This is design, not just an aside.

All right, I want to bring him back to Washington, where you're Brooklynite neighbor, Senator Chuck Schumer told The Washington Post yesterday, the Democrats are getting, "real about border security." And they've moved to the middle on the issue.

Now, look, this is -- this is, you know, you got folks on the left of the Democratic Party who were loudly denouncing any compromise with Republicans on border security as part of a broader deal with Ukraine and Israel and possibly Taiwan funding. There are other folks who say, look, this is an urgent issue, migrant crisis has come to New York City and made an impact. And there could be some political upside, how do you see this?

LOUIS: This is an urgent issue. But it's a global issue, for one thing. Look --

AVLON: Yeah.

LOUIS: -- there were more people on the move, refugees, 100 million of them last year worldwide than at any other time in history. So let's use that as the backdrop. But look, the reality is there are a lot of Republican leaders who do not want to compromise. They are using this issue politically to great effector and they think it's going to be a winning issue for them in 2024.

And if you go procedurally, step by step, there have been attempts to sort of sabotage or delay or make impossible with poison pills, any kind of real resolution. So Donald Trump is trying to do what politics thing to do which is actually legislate. But he knows that politically he's up against people who see a lot of upside in not getting to a solution.

[05:50:08]

And then, of course, there are Democrats who are disgusted by the whole exercise, and don't want to see any of this move forward either. So we've got everything all teed up for a whole lot of inaction, unfortunately.

AVLON: Well, far be it for me to not be the cynic, but I do think sometimes urgency and reaching out to the middle can lead to some breakthroughs. And this is a time for people to legislate, not just demagogue an issue, deal with it.

OK. Errol, you and I met working for "The New York Sun" a long time ago, you've covered New York politics. I was struck by the judge who said recently, those election workers who won $148 million in defamation case against Rudy Giuliani, who I worked for when he was mayor, can begin trying to collect from him immediately. What's your take on that?

LOUIS: Hey, listen, anybody who's ever been on the wrong side of debtors judgment knows that the very first thing you do is a, as you know, they start attaching liens, they started attaching your assets, there's going to probably be some amount of post judgment discovery to find out where Rudy Giuliani has assets, what kind of insurance he may have that can be invoked. And, you know, which, frankly, is not even going to be up to him. You just go to the insurance company and say, we have a different --

(CROSSTALK)

LOUIS: Yeah.

AVLON: But before we go, we're running tight on time. But you've met with Mayor -- you've met with Mayor Adams, recently, I understand. He's had a complex here. I mean, you know, budgets.

LOUIS: Yes.

AVLON: FBI sees against electronic devices, bizarre comments about 9/11. What -- what's going on with Eric Adams, wrap up his political year for us.

LOUIS: He's had a very tough year. I spoke with him, just interviewed him just yesterday. He's had a very tough year. He's had some political setbacks. He's frankly about to get overruled by the city council, which almost never happens in New York. But there's a veto proof majority that some progressive Democrats have. He's had a tough time politically. He's had a tough time legally, set a very tough time from a governing standpoint with the influx of migrants. So I'm sure like many of us he's hoping to get through this year, or smoothly and quickly. But he's had a very, very tough second year in office. AVLON: No question about it. There are 10 days left in this year, so

let's not say anything is done until it's done. All right, Errol Louis, thank you, my friend. Good to see you. Be well.

All right. Coming up this morning on CNN This Morning, got a deal to free 10 Americans and a wanted billionaire fugitive from Venezuela behind that controversial swap, all of it, ahead.

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[05:57:11]

AVLON: It's late in the year but still early in the NBA season. Nonetheless 76ers' Joel Embiid is making his case to win a second MVP award.

Carolyn Manno has this morning's Bleacher Report. Hi, Carolyn.

CAROLYN MANNO, CNN SPORTS CORRESPONDENT: Good morning, John. Hey, how are you?

Embiid never wanted to back down from a challenge. You know this. He had his hands full last night taking on the Timberwolves who own the list's best record and he certainly rose to the occasion which is pretty easy, I guess, when you're seven feet tall. Nevertheless, the NBA is leading scorer put up a season high 51 points and grabbed a dozen rebounds in Phillies 127-113 win. That's his seventh career game with at least 50 points. The 29-year-old also the first player to record more than 30 points with 10 plus rebounds in 12 consecutive games since Kareem Abdul-Jabbar did that 51 years ago and afterwards, the reigning MVP told reporters that numbers are really just numbers.

JOEL EMBIID, PHILADELPHIA 76ERS CENTER: We're winning, you know, I saw -- you know, I saw that Matisse stats are great. No, it's good to put up stats. But you know, if you come to that with a loss, you know, that's a different story. But you know, if you come to the win, of course, he -- you know, is nice a lot.

(END VIDEO CLIP)

MANNO: The LA Clippers know a thing or two or nine about winning. They're on the best run in the league at the moment. The Cliffs beating the Mavericks by nine to win their ninth straight game. Kawhi Leonard led the wave of the double-double, you have 30 points and 10 rebounds as the Clippers improved to 17 and 10 for the first season for -- for the season, excuse me, and they're undefeated in the month of December.

One night after losing to the warriors in overtime and playing without leaving score, Jayson Tatum, the Celtics bouncing back in a big way against the Kings putting on a show. Derrick White and Jaylen Brown each scoring 28 points and all five different players here scoring 20 or more for the Celtics. That's the first time that that has happened in a game for Boston since 1987.

Let's go to college basketball now. Four top 25 teams in college going down last night the defending national champs number five UConn done by Seton Hall and a big east opener for both teams all 10 of the Huskies previous wins had come by double digits this season.

So Seton Hall, beating them fought by 15, was a shocker to say the least. Kadary Richmond scoring a game high 23, adding eight seals here. The Huskies also losing big man, Donovan Clingan in the second half of what looks like an ankle injury. So tough break for them.

And finally on Wednesday was National Signing Day and that is when the best high school football players decide what college they will be playing for in the fall. Wide receiver Jeremiah Smith, the number one overall player in the class of 2024 announcing that he was going to be an Ohio State Buckeye.

Checkout Head Coach Ryan Day's reaction when he found that out during a news conference.

[06:00:03]

(BEGIN VIDEO CLIP)

RYAN DAY, OHIO STATE HEAD COACH: Really?

JEREMIAH SMITH, OHIO STATE BUCKEYES WIDE RECEIVER: Yes, really. It's real.

DAY: I mean, the first beer's going to taste good, I can tell you that right now.

(END VIDEO CLIP)

MANNO: I have not, John, seen Phil Mattingly crack a beer yet this morning.

AVLON: No. But that's an early Christmas gift for Phil. No question about it. Thanks, Carolyn.

MANNO: Sure.

AVLON: Be well.

MANNO: You too.

AVLON: Thanks for joining us early. I'm John Avlon. CNN This Morning starts right now.