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Now: Supreme Court Hears Arguments In Trump Ballot Case. Aired 11:30a-12p ET

Aired February 08, 2024 - 11:30   ET




SAMUEL ALITO, JUSTICE, SUPREME COURT: Officer doctrine. But suppose we look at that going forward rather than judging the validity of an act committed between the time when a president allegedly engages in an insurrection on the time when the president leaves office. During that interim period, would it be lawful for military commanders and other officers to disobey orders of the -- of the president in question?

JASON MURRAY, ATTORNEY REPRESENTING COLORADO VOTERS: I'm not sure that anything gives military officers the authority to adjudicate effectively the legality of the presidency.

NEIL GORSUCH, JUSTICE, SUPREME COURT: What -- why not? Because you say he's disqualified from the moment it happens. Now understand, the de facto officer doctrine might be used to prohibit people from seeking judicial remedies for decisions that take place after the date he was disqualified. But if he's in fact disqualified from that moment, why would anybody have to obey a direction from him?

MURRAY: Well, ultimately, there still has to be some kind of procedure in place to adjudicate the disqualification. Certainly, Congress could impeach a sitting president. But that's the only remedy I'm aware of that exists for removal or otherwise negating the authority of a sitting president.


MURRAY: Well, because --

GORSUCH: On what theory? Because the Section Three speaks about disqualification from holding office, you say he is disqualified from holding office from the moment it happens?

MURRAY: Correct. But nevertheless --

GORSUCH: So, it operates -- you say that there's no legislation necessary. I thought that was the whole theory of your case and no procedure. He -- it happens, automatically?

MURRAY: Well, certainly, you need a procedure in order to have any remedy to enforce the disqualification, which --

GORSUCH: I under -- that's a whole separate question. That's the de facto doctrine. Doesn't work here. OK? Put that aside.

He's disqualified from the moment. Self-executing. Done. And I would think that a person who would receive a direction from that person, the president, former president, in your view, would be free to act as he or she wishes without regard to that individual.

MURRAY: I don't think so. Because I think again, the de facto officer doctrine would --


MURRAY: Nevertheless, come into play to say this is --

GORSUCH: No. De facto -- that would that doesn't work, Mr. Murray, because the facto officers to ratify the conduct that's done afterwards and insulated from judicial review. Put that aside. I'm not going to say it again. Put it aside. OK?

I think Justice Alito's asking a very different question. The more pointed one and more difficult one for you, I understand.

But I think it deserves an answer. On your theory. Would anything compel a lower official to obey an order from, in your view, the former president?

MURRAY: I'm imagining a situation where, for example, a former president was -- you know, a president was elected, and they were 25. And they were ineligible to hold office --


MURRAY: But nevertheless --


MURRAY: They were put in the ballot --

GORSUCH: No, no. We're about over-talking about Section Three.

MURRAY: And --

GORSUCH: Please, don't change the hypothetical. OK?

MURRAY: I'm --

GORSUCH: Please, don't change the hypothetical. I know, I like doing it too. But please don't do it. OK?

MURRAY: The point I'm trying to make is --

GORSUCH: He's disqualified from the moment he committed an insurrection, whoever it is, whichever party, it -- that happens. Boom. It happened.

What would compel -- and like -- I say it again, so just try and answer the question. If you don't have an answer, fair enough, we'll move on. What will compel a lower official to obey an order from that individual?

MURRAY: Because ultimately, we have -- we have statutes and rules requiring chains of command. The person is in the office. And even if they don't have the authority to hold the office, the only way to get someone out of the office of the presidency is impeachment.

And so, I think if you interpreted Section Three in light of other provisions in the Constitution, like impeachment, while they hold office, impeachment is the only way to validate that they don't have the ability to hold that office and should be removed.

KETANJI BROWN JACKSON, JUSTICE, SUPREME COURT: Mr. Murray, can I -- can I just ask you about something Justice Kagan brought up earlier, which is the concern about uniformity and the lack, there of, if states are permitted to enforce Section Three in presidential elections? And I guess I didn't really understand your argument or your response to her about that.

MURRAY: Well, certainly, if Congress is concerned about uniformity, they can provide for legislation and they can preempt state legislators.

JACKSON: Yes. But you say that's not necessary.

MURRAY: But it's not necessary. In the absence of federal enforcement legislation, these questions come up to this court in the same way that other federal questions come up to this court, which is that a state adjudicates them. If the state hasn't provided a sufficient process to comport with due process, a notice, and opportunity to be heard, one can make those challenges. But assuming as here, we have a full evidentiary record and opportunity to present evidence.

JACKSON: No, I understand -- I understand that we could resolve it so that we have a uniform ultimate ruling on it. I guess my question is why the framers would have designed a system that would -- could result in interim dis-uniformity in this way, where we have elections pending and different states suddenly saying you are eligible, you're not, on the basis of this kind of thing?


MURRAY: Well, what they were concerned most about was ensuring that insurrectionists and rebels don't hold office. And so, once one understands the sort of imperative that they had, to ensure that oath breakers wouldn't take office, it would be a little bit odd to say that states can't enforce it, that only the federal government can enforce it, and that Congress can essentially rip the heart out of Section Three by a simple majority just by failing to pass enforcement legislation. Federalism creates redundancy. And here, the fact that states have the ability to enforce it as well, absent federal preemption provides an additional layer of safeguards around what really Section Three --

JACKSON: Yes. And I'll ask you about the history when I get a chance again. Thank you.

UNIDENTIFIED MALE: Thank you, counsel. Justice Thomas? Justice Alito?

ALITO: Suppose there's a country that proclaims again and again and again, that the United States is its biggest enemy. And suppose that the President of the United States for diplomatic reasons think that it's in the best interests of the United States to provide funds or release funds, that -- so that they can be used by that -- by that country? Could a state determine that that person has given aid and comfort to the enemy, and therefore keep that person off the ballot?

MURRAY: No, Your Honor. This court has never interpreted the aid and comfort language, which also is present in the treason clause. But commentators have suggested it's been rarely applied because treason prosecutions are so rare.

But commentators have suggested that first of all, that aid and comfort really only applies in the context of a declared war, or at least an adversarial relationship where there is in fact a war between two countries. And second, the intent standard would do a lot of work there. Because under Section Three, whatever the underlying conduct is, engaging in insurrection, or aid and comfort has to be done with the intent to further the unlawful purpose of the insurrection or to aid the enemies in our pursuit of war against the United States.

ALITO: Now, let me come back to the question of what we would do if we were -- if different states had adjudicated the question of whether former President Trump is insurrectionist using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof, then what would we do?

MURRAY: Ultimately, this court would -- first of all, if there were deficiencies in the record, the court could either refuse to hear the case or it could decide on the basis of deficiencies of the record.

ALITO: Well, what -- would we have to decide what is the appropriate rule of evidence that should be applied in this -- in this case? Would we have to decide what is the appropriate standard of proof? Would we give any deference to these findings by state court judges, some of whom may be elected? Would we have to have our own trial?

MURRAY: No, Your Honor. This court takes the evidentiary record as it -- as it's given. And here we have an evidentiary record that all the parties agree is sufficient for a decision in this case. And then, as I discussed earlier, there's a possibility of a Bose Corp independent review of the facts.

But ultimately, what we have here is an insurrection that was incited --

ALITO: Yes. but that you're really not answering my question. It's not helpful if you don't do that. We have -- suppose we have two different records, two different bodies of evidence, two different rulings on questions of admissibility, two different standards of proof, two different sets of fact findings by two different judges or maybe multiple judges in multiple states, then what do we do?

MURRAY: First, this court would set the legal standard, and then it would decide which view of the record was correct. I think under that. If that -- if this court have few cases --

ALITO: Which rule of -- which of you have left record?

MURRAY: If this court --

ALITO: Of which record?

MURRAY: If this court had two cases before it, and both of the records were sufficient insofar as both sides had the opportunity to present their case, and the essential facts in the record that everyone agreed was sufficient for decision, then this court would have to look at the evidence -- the evidence presented and decide which holding was correct, and then decide that issue for the country. And certainly, here when there is a complete record, lower courts then will be applying that decision.

And I think it's unlikely that any court would say we're going to reach a different decision than the U.S. Supreme Court did, particularly if the court relies on the fact -- the indisputable facts of what President Trump said on video and in his Twitter feed, which is really the essence of our case here.

ALITO: Where you had an expert, just take -- just take that example of an expert testify about the meaning of what President Trump said. But do you -- do you think it's possible that a different state court would apply Dalbert differently and say that this person should not be allowed to express an expert opinion on that question? Do you think that's beyond the realm of imagination?


MURRAY: Not at all, Your Honor. Two points on that. Number one, President Trump didn't appeal the admission of that evidence in this case. But number two, in the second point is that Professors Simi really -- he didn't opine on the meaning of President Trump's words. He opined on the effect that those words had on violent extremists.

And the essence of his testimony was built around videotape statements of President Trump himself encouraging, inciting, and praising political violence.

ALITO: Well, I'm not taking a position one way or the other about whether the expert's testimony should have been admitted or anything like that, or the meaning of President Trump's words. I'm just trying to get you to grapple with what some people have seen as the consequences of the argument that you're advancing, which is that there will be conflicts and decisions among the states, that different states will disqualify different candidates. But I'm not getting a whole lot of help from you about how this would not be an unmanageable situation.

MURRAY: If this court writes an opinion affirming on the basis of the indisputable facts of what President Trump said on January 6 and in the weeks leading up to it, and his virtual confession on Twitter after the fact, then it would be a reversible error for any other state to conclude otherwise on that question of federal law, or at the very least, this court could address that when those issues come up. But it seems unlikely.

UNIDENTIFIED MALE: Justice Sotomayor.

SONIA SOTOMAYOR, JUSTICE, SUPREME COURT: There's two sides to the other side's position. The first is that it's not self-executing. I want to put that aside. Deal with if we were to hold that states don't have the right to enforce or create a cause of action in this situation, they want the flip to say that no, but even Congress can't do it. Because they need implementing legislation.

I trust that argument. Because assume we ruled that states don't have it, what would you have a say for the other side of the argument? One of my colleagues sees it says you need -- or what -- nothing chief justice, but Circuit Court Justice, she said, which is that somehow you need implementing legislation like the 1870 Act.

You seem to say that's not true because they could decide not to seek the pre -- ex -- see the candidate etcetera. So, I don't know that legislation is necessary.

MURRAY: When certainly there are historical examples of member of -- members of Congress under their article -- under Congress's Article One power to judge the qualifications of its members -- of members of Congress refusing to seat ineligible candidates under Section Three who have won election. In the context of the presidency, I think it would create a number of really difficult issues if the court says there's no procedure for determining President Trump's eligibility until after the election.

And then what happens when members of Congress on January 6, when they count the electoral votes, say we're not going to count electoral votes cast for President Trump because he's disqualified under Section Three, under the Electoral Count Reform Act. A number of the amicus briefs such as those of Professor Ginsburg, Hudson, and Foley have made the point that that is a kind of disenfranchisement and constitutional crisis in the making. And it's all the more reason to address those issues now in a judicial process on a full evidentiary record so that everybody can have certainty on those issues before they go to the polls.


ELENA KAGAN, JUSTICE, SUPREME COURT: Mr. Murray, you've talked -- you relied on the state's extensive powers under the elector's clause, you talked about this state's having a role in enacting, you know, typical ballot access provisions. I guess -- I guess, you know, it strikes me that we've put some limits on that. And I'll just give you Anderson versus Celebrezze as an example of that, where we said in fact, states are limited in who they can take off a ballot. And that was a case about minor party candidates.

But the reason was that one state's decision to take a candidate off the ballot affects everybody else's rights. And we talked about the pervasive national interest in the selection of candidates for the National Office. We talked about how an individual state's decision would have an impact beyond its own borders. So, if that goes for minor political party candidates, why doesn't it go for CRA for the situation in this case?

MURRAY: Well, certainly, constitutional principles like Section Three apply to everybody. But in Celebrezze, the issue there was a First Amendment question. And certainly, there's no doubt that states exercise of their power under Article Two is constrained by First Amendment principles.


And in that case, that state law deadlines for when a minor party candidate caught on the ballot just came too soon to be reactive to what major parties had done. And therefore, risk disenfranchising people who were disillusioned with who the major parties had picked and erased First Amendment problems. Here, there's no real First Amendment problem. And a state is just trying to enforce an existing qualification that's baked into our constitutional fabric.

KAGAN: Yes. I guess, you know, it did come up in the First Amendment. But there's a broader principle there. And it's a broader principle about who has power over certain things in our federal system.

And, you know, within our federal system, states have great power over many different areas. But that there's some broader principle about that there are certain national questions that's that -- you know, state -- where states are not the repository of authority. And I took a lot of First Amendment -- not First Amendment, a lot of Anderson's reasoning is really about that. Like, what's a state doing, deciding who gets to -- who -- other citizens get to vote for president.

MURRAY: Colorado is not deciding who other states get to vote for president. It's deciding how to assign its own electors under its Article Two power. And the constitution grants the --

KAGAN: But the effect of that is obvious. Yes?

MURRAY: No, Your Honor. Because different states can have different procedures. Some states may allow insurrectionists to be on the ballot. They may say we're not looking past the papers. We're not going to look into federal constitutional questions.

It's the sort of this -- and even in this election cycle, there are -- there are candidates who are on the ballot in some states, even though they're not natural-born citizens. And off the ballot in other states. And that's just a function of the state's power to enforce -- to preserve their own electors and avoid disenfranchisement of their own citizens.

KAGAN: Thank you.


GORSUCH: Haven't had a chance to talk about the officer point. And I just want to give you the opportunity to do that. Mr. Mitchell makes the argument that -- particularly in the Commission's clause, for example, all officers are to be commissioned by the president seems to be all-encompassing that language. And I'm curious your response to that. And along the way, if you would, I poked a little bit at the difference between office and officer in the earlier discussion, you may recall. But I think one point your friends on the other side would make is well, that's just how the Constitution uses those terms.

So, for example, we know that the president pro tem of the Senate and the Speaker of the House are officers of the United States because the Constitution says they are. But we also know that they don't hold an office under the United States because of the incompatibility clause that says they can't. So, maybe the Constitution to us today, to lay reader might look a little odd in distinguishing between officer -- an officer, not prepositions, nouns, but distinction.

But maybe that's exactly how it works. Thoughts.

MURRAY: Well, I start with the idea that the meaning of officer in the 1780s was the same meaning that it has today, which is a person who holds an office; And certainly, in particular contexts, like the Commission's clause, it appears that that's referring -- you know, that is referring to a narrower class of officers because we know that there are --

GORSUCH: Except it says all.

MURRAY: We know that there are classes of officers, like the president pro tem who don't get their commissions from the president.

GORSUCH: Well, that's because the Constitution elsewhere says that.

MURRAY: We know that the appointments clause refers to a class of officers who get their appointment from the Constitution itself, rather than from presidential appointment. People who get their commissions from the president himself are not commissioned by the president. And so, if you read the appointments clause in line with the Commission's clause, then the Commission's clause is really talking about the president's power. If one needs a commission, it's the president who grants it.

But I think it's important to bring us back to Section Three in particular because that was 80 years --

GORSUCH: But before we get to that, though, just the distinction between office and officer. You do agree that the Constitution does make that distinction, particularly with respect to the speaker and president pro tem?

MURRAY: The Constitution makes that distinction. But the -- at least in Section Three, an officer of the United States is a person who swears an oath and holds an office. Now, the president pro tem and the Speaker of the House, they don't swear a constitutional oath in that capacity. They swear a Constitutional oath if they are a senator or representative in Congress, in that separate non-official capacity. But I think that narrow --

GORSUCH: Do you agree there are officers who don't hold an office? MURRAY: There are officers who may hold an office, but don't swear an oath under Article Six in that official --


GORSUCH: Well, how can they hold an office under the incompatibility clause? It says they can't.

MURRAY: Well, I think that's a fair point. And I think that that may be an exception to the general rule, and one might consider them perhaps officers of the House and Senate because they are appointed by those bodies and preside over those bodies.

GORSUCH: Well, no. The Constitution says they are officers of the United States. So, the -- so, there are some instances when you have an officer, but not an office.

MURRAY: Those may be in exceptional circumstances.


MURRAY: But I would --

GORSUCH: Thank you.

MURRAY: You're welcome.

UNIDENTIFIED MALE: Justice Kavanaugh?

BRETT KAVANAUGH, JUSTICE, SUPREME COURT: The concerns of some question taen how the state's having such power over a national office. Other questions about the different states having different standards of proof. And they seem underscored by this case, at least the dissenting opinion below, Justice Samour said. I've been involved -- "I've been involved in the justice system for 33 years now. And what took place here doesn't resemble anything I've seen in a courtroom." And then added. "What transpired in this litigation fell woefully short of what due process demands."

Now, I don't know whether I agree or not, I'm not going to take a position on that. But the fact that someone's complaining not about the bottom line conclusion, but about the very processes that were used in the state would seem to -- and that that would be permitted seems to underscore the concerns that have been raised about state power. Just wanted to give you a chance to address that because that was powerful language. Again, not disagreeing about the conclusion, but about the very fairness of the process.

MURRAY: Yes, Your Honor. But that language was with respect to Justice Samour, just not correct. President Trump had a five-day trial in this case. He had the opportunity to call any witnesses that he wanted, he had the opportunity to cross-examine our witnesses, he had the opportunity to testify if he wanted to testify, and of course, the process was expedited because ballot access decisions are always on a fast schedule. But in this whole case, from the trial court all the way up to this court, President Trump has never identified a single process other than expert depositions that he wanted to have that he didn't get. He had the opportunity, for fact witness depositions. He had the opportunity to call witnesses remotely.

He didn't use all of his time at trial. There was ample process here. And this is how ballot access determinations in election cases are decided all the time.

KAVANAUGH: OK. Second question. Some of the rhetoric of your position -- I don't think it is your position, but some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office. But obviously, Congress has enacted statutes, including one still in effect, Section 2383 of Title 18 prohibits insurrection. It's a federal criminal statute. And if you're convicted of that, you are too shall be disqualified from holding any office.

And so, there is a federal statute on the books, but President Trump has not been charged with that. So, what are we to make of that?

MURRAY: Two things, Your Honor. Section 2383 was initially enacted about six years before Section Three. It wasn't meant as implementing legislation related to Section Three.

And I would emphasize that, by the time that Section Three was ratified, most Confederates had already received a criminal pardon. So --

KAVANAUGH: I guess the question is a little bit different, which is, if the concern you have, which I understand is that insurrectionists should not be able to hold federal office, there is a tool to ensure that that does not happen. Namely, federal prosecution of insurrectionists. And if convicted, the Congress made clear you are automatically barred from holding a federal office. That tool exists, you agree, and could be used but has not -- could be used against someone who committed insurrection. Do you agree with that?

MURRAY: That's absolutely, right, Your Honor. But I would just make the point that the framers of Section Three clearly understood that criminal prosecutions weren't sufficient. Because oftentimes insurrectionists go unpunished, as was the case in the Civil War. And that the least we can do is impose a civil disqualification penalty so that even if we don't have the stomach to throw someone in jail --

KAVANAUGH: Well, they had the quo warranto provision that was in effect then from 1860 -- 1870 until 1948, but then obviously that dropped out and hasn't been seen as necessary since then. Last question. In trying to figure out what Section Three means in the extended so elusive language or vague language, what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide that?

Because your position has the effect of disenfranchising voters to a significant degree. And should that be something -- does that come in when we think about should we read Section Three this way, or read it that way? What about the background principle if you agree of democracy?


MURRAY: I'd like to make three points on that, Justice Kavanaugh. The first is that constitutional safeguards are for the purpose of safeguarding our democracy, not just for the next election cycle, but for generations to come. And second, Section Three is designed to protect our democracy in that very way.

The framers of Section Three knew from painful experience that those who had violently broken their oaths to the Constitution couldn't be trusted to hold power again because they could dismantle our constitutional democracy from within. And so, they created a democratic safety valve. President Trump can go ask Congress to give him amnesty by a two-thirds vote. But unless he does that, our Constitution protects us from insurrectionists.

And third, this case illustrates the danger of refusing to apply Section Three as written. Because the reason we're here is that President Trump tried to disenfranchise 80 million Americans who voted against him. And the Constitution doesn't require that he be given another chance.

KAVANAUGH: Thank you.


AMY CONEY BARRETT, JUSTICE, SUPREME COURT: So, the general rule is that absent rare circumstances, state courts and federal courts share authority. State courts have authority to enforce the Constitution. But there are certain limits to that certain situations in which the Constitution itself preempts the state's ability to resolve constitutional questions.

And, you know, Tarble's case is one. And you said earlier that once a president is elected, you accepted that a state couldn't do anything about that like you couldn't -- Colorado couldn't enact its own, say, quo warranto provision, and then use it to get the Secretary of State or the President or anyone else out of office. And I assume that's because of this principle of structural preemption. Am I right?

MURRAY: Yes, Your Honor.

BARRETT: OK. So, I just want to clarify what that means for your argument. That means that your eggs are really in the basket of the Elector's clause. Really, in the Article One basket.

Because you're saying that even though all of the questions that people have been asking have suggested that there's a problem with giving a single state the authority to render a decision that would have an effect on a national election, but you're saying that those structural concerns which might otherwise lead to the kind of result that you would accept, after someone is in office are overcome by the Electors clause.

MURRAY: Absolutely. States run presidential elections. That's very clear from Article Two. Once states have selected the electors and the electors have voted, states have no more power over the candidate who has been nominated for president. But until then, the states do have the power to adjudicate those issues.

BARRETT: Thank you.


JACKSON: So, when I asked you earlier about the uniformity concern and the troubling potential disuniformity of having different states enforce Section Three with respect to presidential elections, you seem to point to history in a certain way. You said I think that the framers actually envisioned states enforcing Section Three, at least in some circumstances where there were insurgents and confederates. And I guess, in my view of the history, I'm wondering, really, whether presidential elections were such a circumstance that the framers actually envisioned states enforcing Section Three with respect to presidential elections, as opposed to senatorial elections, representatives, the sort of more local concerns.

So, can you speak to the argument that really Section Three was about preventing the South from rising again in the context of these sorts of local elections as opposed to focusing on the presidency?

MURRAY: Well, two points on that, Justice Jackson. First is that as I discussed earlier, there isn't the same history of states regulating ballot access at this time. So, ballot access rules to restrict presidential candidates wouldn't have -- wouldn't have existed. They wouldn't have been raised one way or another.

JACKSON: Right. But I'm not making a distinction between ballot access and anything else. Yes?

MURRAY: But -- no. But -- understood. But the more --


MURRAY: The more broad point I want to make is that what is very clear from the history is that the framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the United States.

JACKSON: But then why didn't they put the word president in the very enumerated list in Section Three? 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. And for example, the fact that the electors of vice president and president are there, suggests that really what they thought was if we're worried about the charismatic person, we're going to bar insurrectionist electors, and therefore that person is never going to rise.