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CNN Live Event/Special

Supreme Court to Hear Ballot Ban; Trump Goes to Nevada; Lawyers Arguing in front of Supreme Court Today; J. Michael Luttig and Jeffrey Rosen are Interviewed about the Supreme Court Case. Aired 9-9:30a ET

Aired February 08, 2024 - 09:00   ET

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

[09:00:00]

KAITLAN COLLINS, CNN ANCHOR: This is a historic moment for the United States Supreme Court and for American democracy. The justices about to consider whether Donald Trump is constitutionally barred from being president again. We'll hear the unprecedented arguments and the court's responses live.

Welcome to CNN's special live coverage of the Trump ballot battle at the U.S. Supreme Court. I'm Kaitlan Collins live outside the Supreme Court.

JAKE TAPPER, CNN ANCHOR: And I'm Jake Tapper.

A little over an hour from now, the nation's highest court will review this landmark case. The division by Colorado's Supreme Court to disqualify former President Trump from the state's 2024 ballot based on what some call the insurrectionist ban in the 14th Amendment to the U.S. Constitution.

Today, the nine justices, three of them nominated by Trump, are poised to have the most direct impact on a presidential election since the Supreme Court decided Bush v. Gore nearly a quarter sentry ago.

Now, among the questions before the highest court in the land today, did Trump incite an insurrection on January 6th as Colorado's courts, including the state supreme court, determined he did? Does the rarely invoked insurrectionist ban apply to a president, to any president? And if so, should Trump then be barred from the presidential ballot, not only in Colorado but potentially in states across the country?

We're going to begin today at the U.S. Supreme Court, just steps away from the U.S. Capitol, where that January 6th riot played out.

CNN's senior Supreme Court analyst Joan Biskupic is there.

Joan, set the scene for us on the gravity of this case and the stakes for the United States of America.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Sure, Jake. I am just feet from the side entrance for the Supreme Court where I'm going to slip in, in a few minutes, be able to hear the hours of arguments in this case. And you cannot overstate the weight of this because this case could determine who is the next president of the United States. What it will come down to, is Donald Trump going to remain on the Colorado ballot and on ballots across the country, which will determine who our next president will be likely.

So, what will I be watching for when I finally get to cross the threshold here? Two categories of things. The issues. How -- the justices are taking on a wide array of questions here, as you and Kaitlan just laid them out. And, typically, they already start with a particular question presented. They didn't this time. They opened it all up. So, we are going have to hear, for the first time, where do they put their focus? If they put their focus on discreet words like "officer of the United States," or "hold" versus "for running for office," we will know that they might not even get to whether Donald Trump engaged in an insurrection. If they go narrowly during their questioning toward these kind of discreet issues, this would favor Donald Trump. If they start asking more questions about January 6th, more questions about what constitutes an insurrection under Section 3 of the 14th Amendment, that will favor the Colorado voters because the lawyer for Colorado, Jason Murray, is really going to try to keep the focus on this. I'll be watching also Chief Justice John Roberts, at the center of the bench, the strategic center, who will probably try to steer his colleagues towards some potential options and we'll know whether he has any takers by the questions we hear from his colleagues.

Jake.

TAPPER: All right, Joan Biskupic, thank you so much.

Now let's go over to CNN's senior legal analyst Elie Honig.

Elie, walk us through how this case ended up before the U.S. Supreme Court.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Jake, always a good idea to start with the Constitution itself. The 14th Amendment, ratified in 1868, shortly after the Civil War. The main idea was to prevent confederates from taking office. Now, the key language --

TAPPER: Because they had committed treason.

HONIG: Exactly.

TAPPER: OK.

HONIG: The key language in that amendment tells us that "no person shall hold any office who shall have engaged in insurrection or rebellion." And, by the way, that is in Section 3. You're going to hear the parties talking a lot today about Section 3. This is what they're talking about, "engaged in insurrection."

Now, for the next 150 years or so, this 14th Amendment was almost never used until about a year ago when we started to see a bunch of challenges to Donald Trump's candidacy. None of them succeeded until Colorado, which back in December ruled in a 4-3 decision from the Colorado State Supreme Court that, yes, Trump did commit insurrection and he is, therefore, disqualified from the ballot.

[09:05:05]

Trump's team then appealed to the Supreme Court, and they promptly issued what we call certiorari, meaning we will take the case. The briefs are in and we are now 56 minutes away from an historic oral argument.

TAPPER: OK. So, what legal arguments and legal issues do you expect we're going to hear today from the justices? What will they be focusing on when they grill the attorneys?

HONIG: So, three big issues I think we should watch form. First of all, did Donald Trump engage in insurrection? I actually do not think, as Joan said, the justices are going to focus much on this. Of course, Colorado found that he did. Trump maintains he did not. But that's a fact issue, Jake. The Supreme Court is not a trial court. They don't usually make factual determinations.

Instead, I expect them to be looking at the specific legal issues. First of all, who decides whether and how the 14th Amendment applies? Is it Congress, as Donald Trump will argue, it has to be Congress, or is it up to the states?

And then the third main issue that I think we're going to see is, does the president even count under the 14th Amendment? The 14th Amendment actually does not specifically list the president, but it does say that it applies to a, quote, "officer of the United States." So, we're going to hear a lot of back and forth about whether the president counts as a, quote, "officer of the United States."

Those are three big issues to watch for.

TAPPER: OK, Elie Honig, thank you so much.

So, let's talk about this with my panel.

Laura Coates, what is the number one thing you're going to be looking for today?

LAURA COATES, CNN SENIOR LEGAL ANALYST: I want to know if the court gets to the heart of that phrase "engage in insurrection." Now, this is not a fact-finding court. Their job is not to have a trial. But underlying, and the huge elephant in the room is, whether or not he has engaged in an insurrection to the degree that a court would find that it is relevant to apply this insurrection ban against him. If the court tries to wade into these waters of whether he engaged in an insurrection, that would be a very telling moment in American history. You already have a Colorado Supreme Court and a Colorado district court talking about this. You had an impeachment process about this very thing. But you don't have a criminal charge against Trump for insurrection. You don't have four - of the cases - or the cases that are -- Jack Smith is looking at right now a part of it. And the impeachment against him did not result in a conviction.

So, I'll be curious to see if the Supreme Court of the United States wants to wade into this.

TAPPER: Steve?

STEVE VLADECK, CNN LEGAL ANALYST: Yes, I mean, oral arguments in the Supreme Court, Jake, are so often about the justices talking to each other and talking to each other through the advocates, talking to each other through the questions they're asking.

In addition to what Laura says, to what Elie said, I'm interested in, how do the justices, from across the ideological spectrum, actually communicate with each other during the oral argument? Do we see Justice Kagan trying to pick up on questions asked by Chief Justice Roberts or Justice Kavanaugh? Do we see Justice Gorsuch try to pick up on questions asked by Justice Sotomayor? If the court is going to find some kind of consensus way through this case, it seems like the argument's going to be a fascinating preview in that respect in how the justices are actually echoing each other, reinforcing each other, or, Jake, not, as case may be.

TAPPER: George.

GEORGE CONWAY, CONSERVATIVE LAWYER: Well, I agree with that, and I agree with everything that I've just heard. And I think the -- I do wonder how much they're going to get into the "engage in an insurrection" argument because there are legal off ramps, and as Elie said, the legal issues are primarily what this court decides. But here the legal off ramps aren't particularly strong. They -- the - the argument that the president isn't an officer of the United States is not particularly strong, nor is the argument that the 14th Amendment cannot be enforced without a act of Congress. And so I think the court may find itself in the uncomfortable position of focusing on the words "engage in an insurrection."

I don't think there's any question that this is an insurrection because an insurrection is basically any use of force against the government to prevent it from exercising its authority or doing its business. But the question is, what does it take to engage? Is incitement engagement? Did Donald Trump incite? These are questions they don't really want to get into because they're factual. But, at the end of the day, this may be how the case is decided.

TAPPER: Let's - let's just call it as it is, though, if we can, Jamie, for a second. I find it impossible to imagine this court, this conservative court, with three justices Donald Trump appointed --

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: Right.

TAPPER: Ruling in any way that keeps him off the ballot.

GANGEL: So, as the non-lawyer on the panel, let me just say --.

TAPPER: You're not the only non-lawyer on the panel.

GANGEL: Hi. Hi.

TAPPER: There are a few of us. GANGEL: Hi. To quote our colleague Marshall Cohen, he wrote a piece

and the lead was, a lot of smart people predicted this day would never come. So just starting with that, we are here. This is sort of the little engine that could, that it has just grown and grown and grown.

That said, when I've spoken to legal experts, to some judges, to some former judges who are very familiar with this court and who believe in this case, they will still say, this is a court looking for an off ramp.

[09:10:00]

TAPPER: Right.

GANGEL: And that's -

CONWAY: And I don't think that's the conservative judges. I think --

KASIE HUNT, CNN CHIEF NATIONAL AFFAIRS ANALYST: No, I agree with that, George, and because, big picture here, this is arguably -- I mean it is one of the - let's set the Civil War aside, but this is one of the most divided times in our country's history. The Supreme Court is going to anger about half the country regardless of how they decide this.

But when I talk to Democrats who are very much afraid of Donald Trump becoming president again, afraid of what he could do to our democracy, a lot of the really smart ones are honestly afraid that the court -- they would be afraid of the court taking him off the ballot because of the addition to the division that that would create. The number of people who would feel -- and, you know, I think there's some concern that it might be more legitimate if this outside institution denies them the opportunity to vote for the guy that clearly Republicans are about to nominate.

And it's a very trick thing. And, you know, I will say to the lawyers here, I get that we're in - we're in weighty high - you know, legal questions here. The Supreme Court's a political actor.

VLADECK: Yes.

CONWAY: Yes.

HUNT: Like, we can't deny that.

VLADECK: Well, and I think, Kasie, one of the questions is, you know, one of the most famous interventions by a Supreme Court in one -- a case like this was the Watergate tapes case in 1974 where I think it was so critical that the court was able to speak with one voice. You had conservative appointees of President Nixon, who was the person at issue in that case. You had the, you know, lions of the liberal Warren court. And they found a way to reach a unanimous decision, which was so important to having it accepted by both halves of the country. President Nixon himself, right, there was some discussion that they might defy a decision that was 5-3 with one justice recused. So, Jake, I think part of what's going on here is, the reason why

we're fixated on, are there coalitions, is there a possibility of consensus, is because I think that Kasey's exactly right, a 5-4 ruling here is not going to help anybody. But is there some way, do we get some clue from today's oral argument that maybe there's some kind of compromise, much like the court reached in the Watergate tapes case that get the court all together.

COATES: Yes, I'm -- I'm looking for the clues and I'll be listening in. This is why we'd would love to have a camera in the courtroom as well to get a sense of the whole thing. We don't have that. What we do have is the audio. And that will be so important here.

And what I'm listening for specifically as well though is, this is about Colorado, that's true, but you know there are 50 states who are leaning in to figure out, if this court says they can take him off the ballot, well, there's a lot of hands that are going to raise all of a sudden and try to use plaintiff actions to sue to get him off the ballot. They're not - they don't want a patchwork. They want to have some clarity about what other states could possibly do. And if they rule that he's disqualified, the floodgates have opened.

TAPPER: As we get closer to the beginning of this momentous U.S. Supreme Court hearing, we're going to get an update on what former President Trump is saying and doing with the fate of his White House campaign on the line here in Washington, D.C.

There's so much more of our special coverage ahead.

(COMMERCIAL BREAK)

[09:17:05]

TAPPER: All eyes on the United States Supreme Court as the justices are preparing to hear the landmark challenge to Donald Trump's eligibility to appear on the 2024 presidential ballot. We're going to bring you the extraordinary oral arguments live.

Former President Trump is staying away from the U.S. Supreme Court today, quite uncharacteristically. He's at Mar-a-Lago instead.

And CNN's Kristen Holmes joins us from West Palm Beach, Florida.

That's a very enviable shot that I'm looking at right now, Kristen.

We've already heard from former President Trump today, though, huh?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: Yes, that's right. So, he's staying away from the Supreme Court, but he's not staying quiet, which isn't that surprising. Now, we are expected to hear from -- remarks from him later today before he heads to Nevada for the caucuses there. He's expected to win, so another juxtaposition between this legal and political side. But he has done a series of interviews essentially saying that the justices have a powerful decision to make and unsurprisingly alluding to the fact that this is election interference. (BEGIN VIDEO CLIP)

DONALD TRUMP (R), FORMER U.S. PRESIDENT AND 2024 PRESIDENTIAL CANDIDATE: They want to have, you know, the Supreme Court rule or vote to take me out of the race. That would be a very terrible thing to do. It's about the vote, it's about our Constitution. You can't take the votes away from the people. That would be so bad for democracy. That would be so bad for our country, and I can't imagine that that would happen.

(END VIDEO CLIP)

HOLMES: And, Jake, as you said, it's very notable that he's not attending these arguments. He has really used the courtroom, particularly in New York, we saw the defamation case of E. Jean Carroll, as well as the New York civil fraud case as campaign events, as opportunities for him to cry political persecution. But we are told that his team decided for him not to attend, in part because they are taking this more seriously. They are taking a different approach to that.

Of course, we'll wait and see how Donald Trump reacts when he actually gives remarks later today.

TAPPER: The president -- the former president sounded a bit congested there. Is he battling a cold of some sort?

HOLMES: I've not heard that he is battling a cold. He is still planning on all of his travel and going to Nevada. So, we'll see - we'll see how that goes.

TAPPER: All right, Kristen Holmes, thanks so much.

Let bring in my colleague, Kaitlan Collins, who is anchoring outside the U.S. Supreme Court.

Kaitlan.

COLLINS: Yes, Jake, as we are waiting for these arguments to get underway. We're also looking at what they are going to look like, who is going to be making these arguments.

We have Paula Reid here with me outside the Supreme Court.

And what's notable here is that two of the attorneys who are going to be in there, on different sides making this argument, they're very familiar with the U.S. Supreme Court because each of them have clerked here for justices in the past. Jason Murray has clerked for not only Neil Gorsuch, but also Elana Kagan.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Both sides. Yes.

COLLINS: And then Jonathan Mitchell himself was a clerk of Scalia's I believe.

REID: That's right. So, let's start with Jonathan Mitchell. He'll be arguing on Trump's behalf. He's a former Texas solicitor general. This will be his sixth argument before the Supreme Court. He's quite a contrast to a lot of the other lawyers we've seen represent the former president recently.

[09:20:03]

I mean this is a guy who spent most of his career in government, in academia. He writes scholarly articles on the 14th Amendment, and textualism, right? He is central casting for who you'd want to be advocating for you before the justices but a little bit differently than what we've seen recently with Trump's representatives.

Now, arguing for the voters, who brought this case, will be Jason Murray. This will be his Supreme Court debut. Quite a case to make your debut on. He's only in his late 30s, but he is a very experienced lawyer. And, like you said, he's clerked for justices on both sides of the aisle.

Now, if he had his way it would just be two lawyers arguing today, but the justices have also allotted some time for the solicitor general of Colorado to argue on behalf of that state's secretary of state. So, Shannon Stevenson will also be arguing. This is the way they're going to divvy up the time. Jonathan Mitchell will get 40 minutes, Jason Murray will get 30 minutes and Stevenson will get ten.

But, Kaitlan, as we know, these justices, right, they have lifetime appointments, they have no boss, they do what they want. This could go on for hours.

COLLINS: Yes, it's the Supreme Court, they all can blow past their times.

What's so interesting about Jonathan Mitchell is, he's not a household name, but he is also the attorney who underwrote that opinion essentially arguing that when the Texas abortion law, that you could go and others could be held accountable for that. So, he is well known.

But on the timing here and what this looks like, we've also, you know, are going to be hearing from these attorneys inside that room. One person who's not in there is Donald Trump, as Kristen was just noting. I mean we have been at so many court appearances where Donald Trump himself has been there. What have you heard about why he's not showing up today?

REID: So, Kristen and I, along with our colleague Katelyn Polantz, we actually broke the news that he was not going to show up. And in reporting this out, it was interesting to hear about the behind-the- scenes discussion. It appears that there has been some recognition that this strategy that we've seen, that we've been at all these court hearings where he's showed up, he brought the campaign to two civil cases in New York, even to the D.C. District Court here for an appellate argument, bringing the campaign, bringing the circus to these arguments, has not necessarily had the benefit that they anticipated. Now, there's also the fact that this is different. This is the Supreme

Court. Though I will note that the D.C. Circuit is just one rung down and he still showed up to those arguments. He understands, the sources tells me, that the stakes are high. There's really no upside to him showing up today. But it's part of this overall approach that we're seeing here, it's more traditional and it's more disciplined. You have an experienced lawyer going up to advocate your case. For two days now he's been engaged with mock arguments with other Trump advisers. It's clear they're taking this seriously. And in my conversations with the team, they are confident that they don't need the circus. They don't need the chaos. They are confident they're going to win on the merits.

COLLINS: Yes. And we'll continue to follow this as we are listening to them live.

And, Jake, I think that's such a notable part of this is that they are confident that they are going to win on the merits here.

I will say, the Trump team itself is surprise that this case has even been elevated to the Supreme Court, that it has gone from where it was, these plaintiffs who brought this, to the fact that it has been elevated to the building sitting behind me.

TAPPER: All right, Kaitlan, thanks so much.

Still ahead, we're going to dig into the constitutional questions before the U.S. Supreme Court as we stand by for the Trump ballot battle to get underway. I'm going to talk to two legal scholars, including a prominent conservative who believes the 14th Amendment does qualify Trump for appearing on ballots to return to the White House.

Stay with us.

(COMMERCIAL BREAK)

[09:27:52]

TAPPER: Welcome back.

We are closing in on a groundbreaking hearing at the U.S. Supreme Court on an urgent constitutional question, does the 14th Amendment's insurrectionist ban disqualify Donald Trump from running for and serving as president again?

Well, let's try to get some insights right now from two legal scholars. J. Michael Luttig is a retired federal appellate judge and prominent conservative who co-wrote an influential article arguing that Trump is disqualified from returning to office because of this amendment to the U.S. Constitution. Also with us, Jeffrey Rosen. He's a professor at George Washington University Law School and president and CEO of the National Constitution Center.

Thanks so much to both of you for joining us.

So, let's start by just reading what we're all talking about here, the 14th Amendment to the U.S. Constitution, which says, quote, "no person shall be a senator or representative in Congress or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath as a member of Congress or as an officer of the United States, or as a member of any state legislator, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each house, remove such disability."

Judge Luttig, you sparked much of this whole debate when you co-wrote that op-ed in "The Atlantic" magazine with liberal scholar Larry Tribe arguing that the 14th Amendment automatically excludes Trump from the presidency. Why do you think that the case, and why should justices take such a dramatic action to disqualify the man who will likely be the Republican presidential nominee?

J. MICHAEL LUTTIG, RETIRED FEDERAL JUDGE: Thank you, Jake, for having Jeff and I on this morning.

This is an historic case, both constitutionally and politically. Perhaps the most historic constitutional and political case in all of American history.

[09:29:58]

Section 3 of the 14th Amendment is the safety net, the Constitution's safety net for American democracy.