The Lawfare Podcast, Trump's Trials and Tribulations: Supreme Court Oral Arguments in the Trump Disqualification Case

[Introduction]

Gerard Magliocca: You know, it's a modest decision if they say, well, all we're going to do is say states can't enforce Section 3 against presidential candidates, you know, not anybody else. And hey, Congress could pass a law and then you could enforce it against presidential candidates someday. And we're not ruling on all of the more controversial stuff.

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, February 9, 2024. Yesterday, the Supreme Court heard oral arguments in Trump v. Anderson, the case in which the Colorado Supreme Court ruled that former President Donald Trump is disqualified from future office under Section 3 of the 14th Amendment, and thus cannot appear on the presidential ballot.

This week's Trump's Trials and Tribulations, which we're airing today because it's so timely, was recorded in front of a live audience on YouTube and Zoom. I sat down in the virtual Jungle Studio with Lawfare Senior Editors Roger Parloff and Quinta Jurecic, Lawfare Legal Fellow and Courts Correspondent Anna Bower, and Gerard Magliocca, a law professor at Indiana University and an expert on Section 3 of the 14th Amendment to talk about the oral arguments, how the justices may rule, and the implications of the arguments.

We also checked in on the other Trump trials. You know, the ones in Fulton County, the Southern District of Florida, and Washington D.C. to see what's new. And of course, we took audience questions from Lawfare material supporters on Zoom. You should become one of those. It's the Lawfare Podcast, February 9, Trump's Trials and Tribulations: Oral Arguments in the Trump Disqualification Case.

[Main Podcast]

Gerard, get us started. You came into town as the, the world's expert on Section 3 to watch the argument. What are your impressions of the justices handling of the matter?

Gerard Magliocca: Well, I think the first I'm glad to be here and in live and live and in studio as they used to say.

So I think that Justice Barrett had the best grasp of the case in terms of the questioning. She seemed very much on top of things. And I think a couple of the others less so, frankly. But that said, I mean, it quickly became apparent that there was a wide concern about the question of letting each state kind of judge whether someone was an insurrectionist or not, at least as with respect to a presidential candidate and the various practical problems that flow from that.

Now. I think a lot of those concerns were valid. The question is though whether that's a constitutional objection or just a reason to have a federal statute because sometimes we like to have federal statutes instead of having states do things, right? And, and that part I didn't think was really kind of articulated well, at least in the questioning. And maybe the opinion will do a little better job of that because it's one thing to say it's better to have an act of Congress regulating something. It's another thing to say it's a constitutional requirement. So that said, I think that it was pretty clear during Mr. Mitchell's presentation at a certain point that, okay, they're-

Benjamin Wittes: And Mitchell, just to be clear, was the attorney for for Trump here, right?

Gerard Magliocca: Yes, right. That is, he wasn't getting very many hostile questions and he wasn't getting any questions about whether, in fact, an insurrection had occurred or Trump had engaged in one. So, it became pretty clear even before the other side got up to argue that this wasn't really going to go anywhere.

I can't say that's unexpected. And you know, sometimes the opinion might be more satisfying than what you see in the actual questioning, which is a bit more of a thought experiment sometimes. But so overall not unexpected, but I would tend to think we're going to get eight or nine votes to reverse on the ground that states cannot enforce Section 3 against presidential candidates.

Benjamin Wittes: Roger, you were in the room as well. What did you make of it?

Roger Parloff: Yeah, it was a pretty grueling, grueling event. Let me just mention that Gerard was also not just a scholar in this area. He was a witness. He was a witness below.

Benjamin Wittes: I should have mentioned that. Yes. Although he was, I want to point out, he was not the witness that Justice Alito singled out that a different court might have interpreted under Daubert as potentially unqualified to give witness testimony. No justice raised a question about the appropriateness of the lower court having heard from Gerard.

Roger Parloff: No, no. I was surprised about a lot of things, which might be a polite way of saying I was wrong about a lot of things in my predictions, my expectations. But I was very surprised about the centrality of the argument that Section 3 talks about holding office and he's only running for office and the enormous consequences that that is apparently going to have. I always thought that was one of the weaker arguments. And it put things off. But I, the direction they seem to be going is, I, the second thing that leads into the second thing I was surprised about that Thornton v. U.S. Term Limits, it turns out to be a very crucial case.

At least this is the direction a lot of people seem to be going in. That's the one that said, and I haven't read it recently, maybe I've never read it, okay. But it's, the state was trying to impose term limits on its federal officers and that was found to be unconstitutional. And so what they're saying here is that this is because the Section 3 only bars you from holding office, not from running from office, running for office, the state is imposing an extra requirement. It's accelerating that requirement. That, and, and that's possible to argue because there's this unique aspect of disqualification under Section 3, which is that two thirds of both houses of Congress can lift the disqualification. So that makes it different from the age disqualification. If you're, if you're, 16 years old or, you know, if you haven't, if you're not a natural born citizen, this is something Congress can lift. Maybe they can lift it when you're elected. And, and so they're treating that as a very, very different thing from all other qualifications. I hadn't expected that.

I also hadn't expected that Ketanji Brown Jackson would be very, very sold. on the idea, more so than even Jonathan Mitchell, that the presidency, not, not the President, but the presidency is not one of the offices from which you are barred by Section 3. And she had some historical reasons for that.

And that leads to the next thing that surprised me was just how incredibly candid Jonathan Mitchell was, this is Trump's lawyer. He was, he was very good, but he, he said the silent part out loud often. And he told Ketanji Brown Jackson, well, you know, that argument is a heavier lift. Yeah.

Benjamin Wittes: That was one of the weaker arguments we've got.

Roger Parloff: Yeah.

Benjamin Wittes: I have to say, I found it. It's so refreshing that, yeah, that an oral advocate before the Supreme Court just acknowledged where his arguments were weak and, and I thought it's it, you know, I have very seldom seen an advocate. We're used to blasting Trump's lawyers.

Roger Parloff: Yeah.

Benjamin Wittes: And so. You're like when one does a great job, let's acknowledge it. I have very seldom seen a Supreme Court advocate with better rapport with the justices than Jonathan Mitchell showed today.

Roger Parloff: Yeah. And, and like continue, Jackson would say, well, but I, I, cause I historically, I don't think they were really focused on the issue of insurrectionists becoming president. And Mitchell said, well, actually there is some evidence that they were very concerned about Jefferson Davis becoming president, you know. And he would just say, yeah, we didn't make that argument because we thought it would boomerang on us because there's some evidence on the other side.

Benjamin Wittes: I thought, you know, it's, it's like, I'm glad you raised it. I was going to mention it toward the end, but I actually think it's, it's just, You know, it's taking the officer of the court role seriously in a way that I really admire, and he's there advocating for his client. He did a really good job advocating for his client. He's going to win, but he also takes the time to say, look, I don't want to emphasize this point because then my counsel over there will turn around and, you know, boomerang that on me. I'd rather you hear this from me, but actually, you know, they were pretty concerned about Jefferson Davis. And I, I just, I think there's a, a lot of Supreme Court advocates have a lot to learn from, from that kind of candor with the tribunal. It's not something Trump's lawyers are normally known for but this guy's in a different league than a lot of people who've represented President Trump.

Quinta, you were not in the room, but you listened to the argument, as did Anna and I. What were your impressions?

Quinta Jurecic: Well, as Ben has been hearing me just wandering around the office ranting with steam coming out of my ears over the last few hours, I confess I was surprised by how irate I was.

I really, I mean, look, this was a hard case. It was always going to be a reach for the petitioners here to get a ruling on disqualification. I was nevertheless surprised by how, how the justices seem to have really made up their minds going in and were sort of very obviously to my mind casting about looking for potential exit ramps, including exit ramps that were quite convoluted. And that, and people should correct me if I'm wrong, I don't think had been raised previously, such as this kind of weird Griffin's case, federal interest argument about why states shouldn't be allowed to make a call in disqualification without Congress weighing in. I certainly hadn't seen that feature prominently at least in, in the briefing.

And I was surprised by how, I wasn't expecting the question of whether January 6 was an insurrection or whether Trump engaged in it to really take center stage, because it's a, it's a bad argument for Trump. Maybe we could hope for charming Mr. Jonathan Mitchell to admit as much. But it, I was nevertheless kind of surprised that how little it featured. So it took, I counted 53 minutes before anyone raised the question of whether or not January 6 was an insurrection. Mitchell said that it was not, although he said it was shameful and violent. And it kind of didn't feature throughout the rest of oral argument.

The justices were really focused on what I would argue are kind of ancillary concerns about, you know, what is an officer? Is Section 3 self executing? And so forth, to the extent that there is this, this note of kind of almost like befuddlement and irritation from Roberts I think at about an hour and a half in where he's, he's responding to counsel for petitioners, Jason Murphy, and sort of says or respondents, excuse me saying, you know, well, what are we supposed to do, you know, if you have states that are coming to different decisions based on whether or not a presidential candidate is disqualified? What if there are competing rulings? I mean, do you expect us to weigh in? Am I supposed to weigh in on what an insurrection is? To which my response is, yes, that's what this case is. But there just really seemed to be a desire on the part of the justices to not look in the eye of what this case is about.

And I think you also see that in, in the off ramp that they seem to be coalescing around this, this sort of argument that states can't take this action without some kind of congressional go ahead. Because my, my worry here is that if the justices do not rule on the merits, that then what ends up happening is you essentially are just tossing the hot potato to Congress on January 6, 2025.

Because then you've passed it back to Congress, the, the entity that you said should have acted in the first place. Now if, if Trump wins the election, they're going to have to decide what do we do with the counting of the electoral vote with someone who may be disqualified. And I, I don't know what you do in that situation, and I think that they are really underplaying the likelihood that this ends in chaos and further violence.

And I think that you see also this sort of real pushing away of what January 6 was and what happened in some of the arguments that were made I believe this was Chief Justice Roberts and Justice Alito sort of had these hypotheticals about, oh, you know, what if states start disqualifying presidential candidates for this and that, you know, maybe someone thinks that something else is an insurrection. I think that that, that really plays down just how dire January 6 was, just how unprecedented it was, just how frightening and violent it was, and there, there's a level of sort of retreating into the weeds to not have to acknowledge the gravity of the case before them. This doesn't mean that these questions aren't important, but I do think taking, taking a step back, I was really struck by how much the court just really seemed to not want to be left holding the hot potato.

Benjamin Wittes: All right. I want to bring a bunch of these questions back to Gerard. And let's start with the fact that as best as I can tell, you do not have Quinta Jurecic like steam coming out of your ears. And yet this subject is, you know, the thing that made you like a famous not quite household name, but you know, about as close to a household name as 19th century historian law professors get. So, why are you, are, are you just more mild mannered than Quinta? Or is there some reason why you're kind of chill about the whole thing?

Gerard Magliocca: Well, it could be that I'm more mild mattered. I don't know, I only just met Quinta just now. But the other thing is, look, you have the, there's the hat of being a participant, and then there's the hat of being the observer, right? So now I'm wearing my observer hat, because I was just sitting there observing today. And so from that point of view, it's not surprising to me that this would be their response or way of looking at it. Look, it's kind of like a version of penny-wise, pound-foolish. You know, it's a modest decision if they say, well, all we're going to do is say states can't enforce Section 3 against presidential candidates, you know, not anybody else.

And hey, Congress could pass a law and then you could enforce it against presidential candidates someday. And we're not ruling on all of the more controversial stuff that would get people all worked up. Right? So isn't that great? But the, the problem is you're, you're taking a big chance because, of course, if Trump were to lose, right, then the issue goes away and they look smart or wise or whatever. But if he wins, then the gamble didn't pay off. And then we are in the circumstance where people will go to Congress and will say, look, they didn't say he was eligible. They just said states couldn't enforce it. Well, you're not a state, you're Congress, so now you should decide whether he's eligible or not.

Now obviously that's different than having a court look at it. It's the new Congress, whatever that looks like, but okay, that's not a judicial process or much of any process really. And that's going to create a lot of uncomfortable moments, if you want to put it that way, between November and January in the event that Trump wins.

And it's very ironic that we could find ourselves back in a, in a, a different January 6 problem four years after the previous one. So I think that's a mistake, but I can understand why they might make that mistake because they're thinking, okay, we want to avoid talking about something that's going to cause a problem now, in the hopes that there won't be this problem later.

Now you could say that everybody just keeps kicking a can. You know, so Senate Republicans voted Trump not guilty. Well, next election that's far away and hey, maybe we won't have to deal with it. Okay, now, well, okay, let's see. Maybe we won't have to deal with it again because he won't win in November. Well, maybe but if not, I don't know what the plan B is.

Benjamin Wittes: Yeah, so let's talk about that, because one way to think about this is that the Supreme Court's exercising the passive virtues, you know, you don't need to reach this question yet, Congress hasn't acted, defer to the political branches, blah blah blah. But another way to say it is that these are passive vices, actually, and you know, what you're actually doing is you're setting up a confrontation in the wake of an election when the guy has won, apparently, and then you have to have the fight in a way that's much more acute than during the nominating process.

I'm curious, you said earlier that you thought the justice whose questions were most thoughtful and who really seemed to understand this best was, was, Amy Coney Barrett. I'm curious for your, for an explication of that a little bit. What about her approach seemed more, more sensible to you, and was it responsive to this concern in some respect?

Gerard Magliocca: Well, what I meant was that I think her questions reflected a stronger grasp on the materials in the case. For example, she understood what Griffin's case was and wasn't, rather than Justice Kavanaugh's sort of, kind of superficial statement that, oh well, it's just great and it's been, everybody thought it was great for 150 years kind of thing.

Second is, she did point out that, look, there are some situations where the Constitution says that states are disabled from acting. And she referenced cases about state habeas corpus, for example, that cannot be applied to federal prisoners. And so, okay, yeah, sometimes we think there's a structural reason and to say states can't act unless Congress does something or states can't act period. And okay, maybe that makes sense. She also didn't seem very interested in the officer issue because she kind of just said in passing, okay, assume I don't agree with you on that. Let's go talk about this other thing. So, I mean, I think all of that is there and I think it also suits what seems to me her approach, which is a little more incremental and cautious about things generally.

And that this is sort of a kind of home for that. Now that doesn't mean I agree, but I mean, just means that I thought she, she, her questions were much more precise than some of the others who were either not talking much in reference to the historical record at all, or were just seemed to be sort of missing the point sometimes.

Benjamin Wittes: Yeah. I mean, I, I was surprised how many of them were talking about the historical record incorrectly. Like, starting with Ketanji Brown Jackson, who really seemed to believe that the entire animating feature of Section 3 is kind of state politics, and that high national politics really didn't enter into it, which does not seem to me to be consistent with the legislative record at all.

Gerard Magliocca: Right, well, if you say, was the primary concern that people had about people taking office either in the Confederacy or Confederates being sent to Congress? Yes, that was the primary concern because obviously they were trying to reconstruct the South. But to say then that that, well, that was the only concern, right. That's something else entirely. And so, yeah, that, that line of questioning I found kind of, not, didn't do much for me.

Quinta Jurecic: So one point on the role of history, I was really struck there is we're talking a lot about history here. There were a number of briefs by very prominent historians. I was really struck by a moment when Justice Thomas referenced the work of two professional historians in one breath, one Eric Foner, the other Shelby Foote, putting those on people on, in yhe same sentence, I think is, is pretty striking and said a lot to me about the, the role that history was playing here.

So for those who aren't familiar Foner is sort of a preeminent historian of Reconstruction. He literally wrote the book on it. It's very long. And did write immediately after January 6 arguing for disqualification under the 14th Amendment, actually. Foote, I think it's fair to say as someone who's more associated with what's now called the Dunning School of Civil War history, something that sort of tends toward a kind of lost cause mythology and is kinder toward the South and is also someone whose work has been criticized quite a bit recently by academic historians as not particularly accurate. So I did find that striking that the, you know, insofar as historians were mentioned, those were the two historians and they were kind of put on the same level, which I think was telling in terms of how the court is thinking about the role of history and what history it's thinking about.

Roger Parloff: One striking thing about the briefing, and fortunately I think it was clarified here, but there were several briefs that were predicated on a false and, and sort of glaringly false factual scenario.

There, the original respondent's brief, I believe, but I'm certain the brief for Meese, Attorney General Meese, Mukasey, Barr, and a couple professors said that the federal criminal statute against insurrection, which is now at 18 U.S.C. 2383, was enacted as part of the Enforcement Act of 1870. And it wasn't, you know. It was enacted in 1862. It was enacted before Section 3 was drafted and before it was ratified. And so, they had, and they went on for pages about so, you know, this is part of the Enforcement Act and we're bound by, you know. What we're seeing now is, the word seems to have gotten out that and in oral argument, Jason Murray for the respondents did make this clear, but I think they're still going to be trying to use 18 U.S.C. 2383 is some sort of safety valve. Like, it's not like there's no recourse if a president commits an insurrection. You can indict him under this law and Trump hasn't been indicted. There has been some very bad law bandied about.

Benjamin Wittes: And bad history. So, before we move on from Section 3 and into other Trump trials and tribulations, I'm, I'm curious, Gerard, where this leaves us.

Assuming that we have some, since no justice reflected any interest in the merits of the question, is Trump in fact disqualified under Section 3 of the 14th Amendment, I assume we are going to get some kind of opinion that is predicated on the absence of Congress implementing this in some more direct sense than 2383 and allowing, permitting states to disqual to implement through their own election laws and ballot access procedures, the disqualification.

And so, if you end up with a ruling, and we talked about this a little bit before, but I, I just kind of want you to walk us through this. If you end up with a ruling that says Colorado can't do this, but doesn't say what Section 3 means or how you might apply it to the facts of the January 6 insurrection, and maybe doesn't answer the question, does it apply to Donald Trump, or does it apply to the presidency? What then happens with Section 3 and the 2024 election?

Gerard Magliocca: Well, first you might get a couple of separate opinions that would at least try to fill in some of those gaps or at least express a view on one or more of those matters. That's, there's some possibility of that, or there's some possibility of one dissent, I guess. So can't say, could definitely, it would be unanimous in result, though probably it will be. The answer is, maybe nothing, because again, Trump might lose, right? The trouble is, okay, if he wins, and especially if he wins after he's been convicted of something, then a lot of people-

Benjamin Wittes: And let's, let's, let's make it hard. Let's say he's wins after being convicted of the four count indictment in connection with the January 6 case, which charges him with all kinds of facts that a reasonable person might say boy, that looks like an insurrection, but is not charged under the relevant statute. It's charged under fraud against the United States and conspiracy to, you know, impede a government process and, and conspiracy against rights. So you've been charged and convicted of facts that you might infer are insurrectionary, but the government chose to call it something else. What happens?

Gerard Magliocca: Right. Well, depending on how the opinion is written, it's possible that in that event, even at the point of conviction, somebody might try to run in somewhere and say, well, okay, now you have a federal conviction. So maybe that counts as what you need to do a disqualification. But more likely it's that people are just gonna say Congress should not seat him, that in effect, they should, they should exclude him from the presidency. But  what does that actually look like? A lot of protests going to Capitol Hill to say, you know, don't, don't seat him because he's disqualified.

And that could get really ugly. And, and that's probably where we're headed if, if he wins. Because even if he's not convicted, I mean, people might still do that, but they're probably, the likelihood of that is even, is greater if he is convicted on those charges.

Benjamin Wittes: So, Roger, I meant to ask you this earlier, but I didn't. Are you, do you share Quinta's steam coming out of your ears, irritation at this argument, or are you more In observer mode, what happened, happened, and, and the justices did not approach it from the point of view that you expected, but.

Roger Parloff: While I was there, it, it was grueling. You know, it's like, you know, watching your team lose 45 to three in the Super Bowl, you know, not to tip my hand too much.

And when nobody is speaking out anymore, none of the justices, it's just sort of a punching bag, you know, that, that part is hard. It was a very consequentialist argument, and you have to say, you know, that was my initial reaction, to this whole thing back in 20, you know, 21 when I started looking into this stuff was exactly all of this, that how is this going to work really?

And, and of course, the thing we tossed around here sometimes is, what exactly happens if, if the Colorado court is affirmed, does it, what did the other states do? And, we thought, well, maybe they all fall in line, or maybe, maybe, you know, the Supreme Court can say, well, he's disqualified. And yet, and no, they didn't think so. They said, no, all we do is review for clear error. And so all the other courts would, continue to litigate this with various outcomes, and it would be a disaster. And, you know, you know, I can see that. So, I guess I've calmed down and maybe I'm, I'm more at the Gerard end of the spectrum than the Quinta end of the spectrum emotionally to begin with. But, you know, I, I actually, I would like to say, I, you know, Kavanaugh gave us a fairly clear picture of what he's going to write.

Benjamin Wittes: Yes, he was, he was quite transparent about where he's heading.

Roger Parloff: And this again goes to Quinta's false history theory. He's going to say they ratified the amendment in 1868. And then the next year, Chief Justice Chase, in Griffin's case, not as a Supreme Court case, makes this ruling.

And then 1870, Congress responds to the ruling. And he's also going to say that Chief Justice Chase's ruling that you needed, Congress needed to enforce this tells us what the original public meaning probably was. Cause here you have a chief justice and he's a contemporary. And of course, we know it's not true because you know, he wrote the Jeff, the Jefferson Davis case six months earlier, but anyway, that will be part of it.

And then, and then the 1870 law, the enact, Enforcement Act, lasts until 1948 on the books. So, apparently, and Gerard can explain this, there's something, there's a theory called liquidation that Madison brought up in Federalist 37. It's this idea that you may have a something unclear in the Constitution or in a statute, and then in practice it becomes clear what it means. So this is how they're going to put that together and, and say that Congress has to enact something. But how we get out of the, you know what the exit ramp is if we need one on January 6, 2025 is still an open question.

Benjamin Wittes: Well, I'm sure that the ever effective United States Congress will respond to this oral argument by saying, look, the Supreme Court is implying we need implementing legislation. Let's craft a careful process to evaluate state ballot access or to authorize states to control ballot access on the basis of Section 3 subject to the following due process rules, and clearly that's how a reasonable Congress and therefore our Congress would respond to this oral argument.

Okay, we're going to shift gears and turn to the other Trump trials and tribulations because you know, there's never just one. And the ever patient Anna Bower has been sitting here just waiting because we're going to go from the hallowed halls of the Supreme Court of the United States straight to divorce court in Cobb County, and we're barely going to even pause for a tawdry moment in, in Fulton County.

Anna Bower, since we last talked the estimable Fani Willis has finally responded to that motion for her disqualification. If I do say so myself, the power of her response amply justifies our reticence about discussing the matter in great depth before it. So, what does she have to say? And does this put the whole, let's say, l’affair Fulton County to rest?

Anna Bower: Right. So, Fani Willis did respond on Friday and her response, as, as you noted, Ben, was quite forceful. She disputed some of the facts that were made in Mike Roman's original motion for disqualification. For example, she, although she admitted that she did develop a personal relationship with Special Prosecutor Nathan Wade, she says that it did not begin until 2022, which would have after he was hired. Along with that response, there was also an affidavit that was filed by Nathan Wade in which a number of statements were made by Nathan Wade in which he said, we've never shared income, we have never cohabitated. And any of our expenses on personal vacations have been have roughly been split. They did also include at least one example of Fani Willis purchasing, you know, a plane ticket for Nathan Wade, whereas previously there had only been evidence to show that Nathan Wade bought tickets for Fani Willis.

So that was apparently to support the claim that they, they had split their personal travel expenses. But more notably was the, the way that the district attorney responded in her legal arguments. You know, she makes a lot of compelling arguments that Georgia courts have been, have, have said that there is no kind of categorical disqualification based on a romantic relationship.

And then, you know, that there is no argument here for, based on what has been presented thus far, that there's disqualification based on a financial interest. Because there is no, you know, demonstrated interest in Mike Roman's conviction or the conviction of any of these other individuals who have been indicted, including Trump.

So I think that it was a strong response, although I mean, I will say that, you know, much of it comes down to the truth of the representations that were made by Nathan Wade and the district attorney in that response. I, I think that, you know, there was this, this reply by Mike Roman. In my view, there, there were, there were a lot, there was a lot of things about that reply that I thought, thought were quite at the very least distasteful, but it relied on a lot of innuendo. But the, the gist of it was basically that, you know, there are disputed questions of fact. Mike Roman has, has alleged that the relationship between Nathan Wade and Fani Willis began before he was hired as special prosecutor, and then Mike Roman has subpoenaed a number of people to testify at this hearing on February 15, including Nathan Wade and Fani Willis and a number of people who work in their office.

Then just yesterday, we got a motion to quash from Fani Willis and her office. They are seeking to quash a number of subpoenas that were sent out by Mike Roman's team. And then earlier this afternoon, there was also a separate motion to quash from Nathan Wade. He is seeking to quash subpoenas for documents to one of his personal bank accounts, and then also for financial records to his law firm and the, the gist of the legal argument there is basically that these are, you know, overbroad and, and oppressive and kind of, subpoenas that were issued to, to simply harass as opposed to, you know, based in any kind of, you know, reasonable search for, you know, proving up evidence. They, I believe, Nathan Wade in one of these documents calls it a fishing expedition. So it's, it's to be seen what Judge McAfee will do with respect to quashing those subpoenas, he has even indicated, you know, for defense counsel to make arguments in their reply brief as to why a hearing should still be held.

As I already said Ashley Merchant on behalf of Mike Roman did make such an argument and it's expected that we'll see some more reply briefs from other defense counsel and then further reply from Mike Roman, but we have this February 15 hearing and I think the big question is just what will Judge McAfee do to keep that hearing from turning into a circus because it seems at the moment he's going to have a very difficult task kind of reeling everything in and keeping it you know, from turning into a show as opposed to an evidentiary hearing in which the defendants have their arguments heard and then also the district attorney is, is still able to, you know, not just have this become a spectacle.

Benjamin Wittes: Alright, so, I wanna argue Fani Willis' side of this for a second with respect to the answer to that question. I'm, let me lay my cards on the table, which Anna knows, but you all don't.

I am irate, about, in light of her response to this set of motions from Mike Roman and that have been joined by Trump. I am a little bit shocked and kind of angry that these motions were filed in the first place without a better factual record and it actually seems like wildly inappropriate to me. So that, those are my biases.

But it seems to me what you've got right now in terms of record evidence on the one side is the suggestion acknowledged that they, that Fani Willis and Nathan Wade had an affair, an allegation that they started that affair in 2019, that he in sworn testimony disputes, and a sort of innuendo that he's lying with no record evidence supporting it. And you have a series of claims, none of them supported, about him, like basically a kickback scheme between her and him that the sum total of evidence of which is that he paid for some trips that she went on, although she also apparently paid for some trips that he went on. And so the record evidence establishes only that there is a workplace romance in which they pay for each other's trips.

I don't understand how any of this supports subpoenas to anybody in the absence of something more than Ashley Merchant's innuendo that he's lying. If he's lying, he should be prosecuted and it's not just a matter that, you know, then you have a different matter if, if, if she has evidence that he's lying. But right now, I don't understand how there's a factual record for Judge McAfee, Boy Wonder McAfee, to do anything other than say, you haven't established the factual predicate for any component of this motion. Unless you're merely trying to expose the fact that they have an affair. So what am I missing?

Anna Bower: No, and I, I, I mean, I'm in agreement with you, Ben. I, I will say, I think maybe the solution to this is, you know, there are some witnesses who have been subpoenaed who, as far as I'm aware, have not moved to quash their subpoenas.

And, and these are people who, you know, are potentially fact witnesses to some of these claims that have been made by Ashley Merchant, that would dispute the sworn testimony of Nathan Wade. And so what McAfee could do is say I'm going to hold the question of whether to quash the subpoenas and you can, you know, if there's these other, you know, if you can make a showing for the, the need for these, the testimony of some of these other witnesses, or if you can at this evidentiary hearing, prove up any of these factual predicates.

Before, you know, the district attorney or, or any of her individuals in her office are set to testify, then, you know, maybe the, it's in question, but I think that, you know, his, his move would be to kind of at least let them try to establish some factual predicates before he quashes the subpoenas. The reason being that, you know, I think McAfee is a judge who has shown that he wants defendants to feel like they are being heard, even if they don't necessarily have, even if they don't really have a shot at winning the argument.

And I, this isn't to say, I'm not saying that McAfee should just let any kind of, you know, frivolous argument be brought before him. But I think that, you know, this is an argument that I don't think is frivolous, but it, it doesn't really have a whole lot of merit as of yet. But that kind of min, at least like minimal kind of argument that could be made here, I think is the kind that McAfee is going to at least want to let the defendants feel like they've been heard and kind of, he's very aware of the public perception if he does not at least have some type of evidentiary hearing, right?

What would you think of that? I mean, would you disagree that maybe that's what, how he could approach it or, or no?

Benjamin Wittes: I mean, if I were him, I would take the view that it is the, the burden is on the moving party to establish the predicate for any factual development. And so far, they haven't done it. And unless you can produce material impl, showing that the facts that he has sworn to are untrue, then the only facts that are in the record are sworn testimony from an officer of the court that your factual premise is wrong. And so I'm, I would be a real hard liner about this, unless and until there's some evidence that Nathan Wade is lying, in which case I would really come down like a ton of bricks on him.

Anna Bower: Well, we'll, we'll see. February 15.

Benjamin Wittes: That's next week. By this time next week, we are gonna have a, like, a, a shit show in, in Fulton County to talk about. All right, speaking of shit shows, Mar-a-Lago. The, the, the slow-moving, slow-motion train wreck. Anna, bring us up to date, and Roger, bring us up to date.

Anna Bower: Right, so Mar-a-Lago, we did, we did have some Judge Cannon orders that, that came down. So this is a part of this ongoing dispute over discovery. As a quick refresher, Trump had filed a motion to compel discovery. They're basically, you know, saying that they have not received everything that they should. They, they were kind of, you know, they were complaining about not, the breadth of discovery. They wanted it, they wanted to get more information and they had a number of exhibits and documents that they filed with it.

But as a part of that motion, they also, you know, wanted to file certain exhibits and documents in a more unredacted form. And the special counsel's office was opposed to that argument. There was also an intervention by some of the, the media coalition who, who did want more information unsealed or, or unredacted.

So Judge Cannon kind of had to decide what to do about this. There were basically, I think it's four categories of things that the special counsel's office wanted to keep redacted or sealed that was the code name of a separate FBI investigation some descriptions of uncharged conduct related to a, a different individual who's not been charged in, in this case.

And then Roger jump in if I'm missing something. And then there's also the intelligence signals of this kind of national security information that, as far as I'm aware, is not classified, but still sensitive information. And then the names of certain witnesses. in the government's case as well.

And so they, you know, filed this motion asking to, you know, keep all those things redacted or sealed. Judge Cannon on Tuesday said, no, you have to, basically disagreed on three, I believe, of the areas. She did agree that there was a national security interest in the one area related to national security information. But much of the other stuff she said no, you haven't been specific enough special counsel, you know, you kind of just filed this opposition that really made these, you know, generic claims about witness protection and, and all of that. And because you weren't specific enough, you know, I, I do think that these things should be unsealed or, or unredacted.

And then the special counsel in response to that order just recently, last night, filed something saying that they intend to ask Judge Cannon to reconsider parts, at least parts of that order and that they want to file something more specific, but they, they basically, you know, wanted to get permission from her to file it under seal, the reason being that it includes the names of witnesses and references to a separate investigation that is ongoing in a different U. S. Attorney's office. And they revealed that that investigation deals with threats on social media to one of the witnesses in the government's case in the Mar-a-Lago case. And then there's the interesting because you know that filing discloses that there is this separate ongoing investigation about threats made to a witness in the case.

So that is the latest in the kind of back and forth over this, what information will be disclosed, But I do want to just mention Ben because a lot of I've seen a lot of people online and in media outlets kind of getting this wrong. This actually doesn't relate to the separate dispute around, which I think Roger can talk about, around what classified information will be provided to Trump's team. This dealt with, you know, materials or information that is sensitive, but is not classified.

So although there were some headlines saying that Judge Cannon, you know, made classified information public, that is, that is inaccurate. So just to kind of clear the air on that, but Roger, if you want to talk about the other developments, then go for it.

Roger Parloff: Okay, and that's that's exactly right as far as I know. And I have seen some false, some inaccurate reports there.

So the actual CIPA proceedings, CIPA Section 4 proceedings continue. This is, has to do with information that the government thinks Trump's team does have some sort of discovery entitlement to, but it, they, they also involve a lot of ultra sensitive material so they want to have it redacted to take that out and they're going through the procedures provided. And Trump has want, these are usually ex party, the judge meets with one side, the government sees the documents, meets with the other side alone, talks about their defenses, tries to decide what they're entitled to.

Trump wants to see, or to have his lawyers see, the secret information, the secret motion. She hasn't decided that portion of it, so she's holding a hearing Monday, February 12 and she'll have the first, the morning will be ex parte with the defendants, the afternoon ex parte with the government, and then they might meet again February 13, the next day if necessary. And then she will apparently not decide the motion, but decide whether to share some of this confidential information with Trump's lawyers, possibly also with Nauta and de Oliveira’s. So that, and that could be a controversial thing. So we're waiting on that.

The other, the other thing that I think looks a little ominous is that defense, Trump's lawyers have asked for, their motions are due pretrial motions, motions to dismiss are due February 22. And they're already asking, they say they're going to file some huge ones then, but they want another 30 days. Actually they, they want an extension of deadlines so that after the government responds to their motions to compel that they can decide whether to file still more motions and the ones they know they're going to file are presidential immunity-I'm not sure how that works in this context-Presidential Records Act, President Trump's security clearances, the vagueness doctrine, impermissible pre-indictment delay, selective and vindictive prosecution. And then the motions he is considering beyond that have to do with prosecutorial misconduct, due process violations, unlawful disregard of President Trump's attorney client privilege, the Mar-a-Lago raid, and searches of defendants electronic devices. So there is a lot of potential delay causing motions piling up.

Benjamin Wittes: All right, we are going to go to audience questions. We've got a lot of them, so please keep your questions brief. We have for our first question today, and I'm so excited about this, Lin, Lindsay Chervinsky, who is among other things, she is my book author sibling. Because I wrote a book entitled “Unmaking the Presidency,” and Lindsay has a new book coming out called “Making the Presidency,” which is about, I believe, the Adams administration foreign policy. Is that right, Lindsay?

Audience Member: Yes, it is on John Adams, the creation of precedence and norms like the peaceful transfer of power, so hopefully it will be nice and relevant.

Benjamin Wittes: I was so excited when I saw that your book was coming out because it's like the mirror image of mine. And I thought that was cool and it like bonds us forever. So, you get the first question today.

Audience Member: Well, thank you so much. So, I know that the mandate for the D.C. Circuit Court is going to send it back to the district court on Monday, and my understanding was that that meant that the trial calendar would re -up again unless the Supreme Court approved a stay. But I heard a lawyer on a different podcast say that the stay

Benjamin Wittes: Don't trust those.

Audience Member: I know, right? They're tricky. Say that the stay would be automatic. And so what I was curious about was, does the stay go into place until the Supreme Court decides whether or not there's a stay, or does it have to be, actually be granted?

Benjamin Wittes: Yeah, so here is the answer to this, and then Anna Bower is going to tell me where I get it wrong.

So if first of all, it's Tuesday, not Monday. The, the, the stay of the mandate from the panel goes through Monday, which means the mandate will issue Tuesday, unless Trump asks for, Trump notifies the district, the Circuit Court that he plans an appeal and is filing for a stay with the Supreme Court. If he does that, the stay, the existing stay, will remain in effect until the Supreme Court rules on his request for a stay. If they then grant the request for a stay, then the Supreme Court's rule, ruling controls. If they don't grant the request for a stay, then the D.C. Circuit stay dissolves as well. Is that right, Anna?

Anna Bower: That is right. And I would just like to say thank you for clarifying to everyone that the mandate, if there is no stay, no automatic stay through an application by Trump, would issue on Tuesday, not on Monday because everyone is getting that wrong. The mandate does not issue on February 12th. It is held through February 12. So Trump has until Monday to file an application.

Benjamin Wittes: These are the things you come to Lawfare for, you know, those other podcasts. They get you within the right week, but they, they get you a day that ends in D A Y, but they might give you Monday instead of Tuesday. On Lawfare, on Lawfare Live, you are going to get the right day that the stay dissolves and the mandate dissolves, leaps out of the hands of the clerk of the D.C. Circuit and flaps its way back to Judge Chutkan. All right Chris, the floor is yours.

Audience Member: Thanks, Ben. So, the can has been kicked down the road by the Supremes today, it seems, and I'm wondering what are the different ways in which it might get picked up. So, if Congress doesn't reverse the disqualification, could there be a writ of quo warranto post January 20th if he wins? Could there be a challenge to his first executive order on the basis that he can't hold the office and therefore the order is invalid? What are some of the options post January 20 if Trump wins?

Benjamin Wittes: Gerard, this one has your name all over it.

Gerard Magliocca: Right. So first of all, there's no federal quo warranto for the president. And the question was raised by Justice Barrett, again, a good question about, well, even if there were, isn't, is that lawful or would that intrude on the impeachment power of Congress. So that's unclear. Will people try to bring challenges to say second Trump administration actions? Yeah, probably, but they won't go anywhere. They'll, they'll just be dismissed on the ground that the joint session, if they confirm him as president and he's sworn in, then he's the president, unless some other procedure is developed to kind of remove him from office, which you know, won't happen. So, so I think you might see a little bit of that kind of initially, but it will quickly be nipped in the bud because they'll just say, well, the joint session was the body that could have done something. And if they didn't do anything, then that's that.

Benjamin Wittes: All right, Julia. The floor is yours.

Audience Member: Okay, I read Ian Bassin's piece in Lawfare yesterday about Section 3, and if the Supremes don't hold up, don't affirm the Colorado decision the 22nd Amendment could come into play which is the amendment that I mean, down the road, which is the amendment that limits a president to two terms. Can you talk that, talk about that a little bit?

Benjamin Wittes: Yeah, so this actually came up at oral argument today and I believe Justice Kagan asked about it, if memory serves. So, Gerard, in case you didn't read Ian's article, he, he said basically, gosh, you know, imagine it's August and the Supreme Court has ignored, you know, has found that Section 3 is not self-executing and, you know, the 22nd Amendment isn't obviously anymore self-executing. So what if the Democrats decided Biden is a non-viable candidate and so we should just nominate Barack Obama? And since these amendments are apparently, these qualification amendments are apparently non self-executing. Congress hasn't done anything here either. And so the question is, is the, is there some actual reason in the text or history of the Constitution why the 22nd Amendment should be more judicially enforceable than the, Section 3 of the 14th?

Gerard Magliocca: So I think they will drop a footnote in the opinion that says nothing we say here has anything to do with the other qualifications for president. And the reason they will say that is those are basically simple objective facts. How old you are, are you a citizen, have you already served two terms? And those don't raise the problem of complicated determinations from state to state that could vary a lot and so on. So, in effect, states could enforce that. But not Section 3. So I do think they'll say something about that because it's kind of a fair point to make against their analysis, but they'll probably say simple versus complicated and that's, that's going to be the distinction

Benjamin Wittes: All right, so there are a rest of the questions won't people want me to read them today. So I'm gonna read some questions.

Josh writes in with a string of three questions. We're going to do them in rapid fire. If you have an answer to one, just speak up. One, D.C. Circuit affirmation of Chutkan's order denying dismissal on immunity grounds. We were all asking, what's taking so long? Having read the opinion, what took so long, Quinta? Is per curiam better or different than the same content written by Judge Henderson and joined in full by Childs and Pan without dissents or concurrence? I know you have thoughts on this, Q, because you and I talked about it yesterday.

Quinta Jurecic: Yeah, so great, great question. I think that the, the per curiam nature of the opinion is probably what took so long. It's rare to have a per curiam opinion at that length. This is an ideologically diverse panel. Judge Childs is a Biden appointee. Judge Henderson is a H.W. Bush appointee. So, I think it's reasonable that, you know, it took them a month to kind of iron out all the details and put together something that they were all comfortable releasing as a per curiam opinion.

As to why that is different in its significance, I think it really underlines that, you know, this is the panel speaking with one voice. This is not, you know, you have a majority, you have a concurrence, maybe you have another concurrence. This is all of them underlining, you know, we are a unified front on this. I think it's a, it's very much a signal to the Supreme Court that, you know, we're certainly to the, to the rest of the D.C. Circuit if, if Trump does petition for re hearing en banc and, and to the Supreme Court as well, you know, we are very confident in, in our, our reasoning. And so, I think there is reason to argue that it may have been certain, that they may have made the call that the additional time it took to reach that decision per curiam was worth it because of the particularly strong message that a per curiam opinion sends.

Benjamin Wittes: All right. Two, will the review by the appeals court in the E. Jean Carroll defamation case review or revise the compensatory damages? How does this relate to punitive damages and what's the time frame? So, Roger, do you have any thoughts on this? My own sense is that the time frame for a Second Circuit appeal is probably about 18 months and maybe a little longer, and appeals courts generally knock down punitive damages a bit, although this is within the range of, that the court has, the high court has set. So I would expect a lot of these damages to actually have effect. Roger, do you have thoughts, you've actually practiced in that jurisdiction? What-

Roger Parloff: I don't know how long the appeal will take it. It could take, you know, it could take a long time. But and then she's asking also about compensatory damages and it could well be she's also going to the, Trump will also disagree with that some. But that's too granular for me as far as I haven't been following it that closely. But yes, the, if the, if, if the compensatory damages are reduced, it could have an impact on the punitive damages, which are, you know, usually some sort of multiple

Benjamin Wittes: Escalation.

Roger Parloff: Multiplicative factor, you know.

Benjamin Wittes: All right. And the last question from Josh, guesses Gerard, on when the Supreme Court will decide the Section 3 case? How long is this going to take them?

Gerard Magliocca: Maybe by the end of the month, early March. I would say no more than a month would be my best guess.

Roger Parloff: Super Tuesday is March 5th and, and Trump had asked try to have this resolved by March 5th. And the whole, the whole expedited schedule has been sort of aimed at achieving that goal. So I, I, I think they're still on that, that's the goal.

Benjamin Wittes: All right, Catherine asks, for the conservative justices looking to deny cert or cause a delay in the trial court, is the Jack Goldsmith article on tighter language their most attractive justification or cover story?

So, I actually don't think so. So, I assume you mean to grant cert, not deny cert. But so, first of all, the Goldsmith article, which relates to something called the clear statement rule, I don't think it's going to help Trump. Jack's concern in that article is the historic position of the Justice Department on the interaction of criminal statutes and presidential power. And he starts the article by saying he thinks that the D.C. Circuit is right on the merits and the refinement that he wants here, the reason he wants the Supreme Court to review the matter is to reduce tension between the, what he perceives as tension between some traditional OLC opinions, and Jack used to run OLC, so he has a, a very deep interest and knowledge in, in this area.

Reduce tension between what he perceives as the D.C. Circuit's approach to this and OLC's traditional approach. And he's very careful to say he doesn't think that would help Trump, that he thinks under either standard Trump doesn't get the immunity that he's looking for. So, if you're a justice trying to help out Trump here Jack's path is not the one you're gonna have to look at. You're gonna have to look at something much more radical unless you're simply trying to eat up time.

Jeff asks, what would happen if a congressional representative put forth a bill declaring Trump disqualified and it passed? So Gerard, that's an inter, I've, I've gotten the opposite question. What if they tried to relieve the disqualification and it failed? But yeah, what if you had a simple majority saying he's disqualified? Is that implementing legislation?

Gerard Magliocca: Well, no, because they can't just directly disqualify someone. They've got to have some ability to challenge it judicially. So, I mean, I guess they could pass such a thing and then you could go to the courts and say they can't do that, right? And, and, and probably that's, that's correct, that it's really left to a court to decide. Although, in effect, if the joint session of Congress says, look, we're, we're not going to count the electoral votes for you because we think you're disqualified, that's kind of amounting to the same thing. Except that the Electoral Count Act has special procedures for how that happens, right? It's not like passing an ordinary bill or, or resolution.

Benjamin Wittes: All right. Jay asks, and Roger, I think probably knows the answer to this question off the top of his head because he's a brief counter. In just raw numbers of amicus briefs, how did the number of briefs supporting Colorado compared with those supporting Trump?

Roger Parloff: I think there were 74, I think, our, our colleague Hyemin Han determined. And I, I think it was more for the Trump than for the respondent. And then there were 14 that took no position. Quinta?

Quinta Jurecic: Yeah, I don't, I don't have it off the top of my head, but Anna Hickey has kindly put in the, in the chat, the link to our roundup of, of briefs, which, which is the, the tally that Roger is referencing. So you can take a look there.

Roger Parloff: And incidentally, at the Supreme Court today, you know, when they have an argument, they have a, an official summary of the argument that is provided by somebody at the ABA for each argument. And the one in the, today references Hyemin Han's disqualification tracker.

Benjamin Wittes: Excellent. That's what you should, again, this is a reminder, always reference Lawfare content. May talk about it when you're annoying people at dinner. Be the, be that annoying person who says, you know, I read this article in Lawfare and it, link to a disqualification tracker in Lawfare. There it is. All right, so the great Genevieve Delafera has some questions and we're gonna go through them. The most of these are for Gerard, but as the rest of you have thoughts, just jump in.

What did y'all make of Samuel Alito's hand wringing about different states reaching different individual conclusions about disqualification under Section 3. Doesn't the court routinely deal with similar issues when they handle Circuit splits? It seemed to me a distinction without a difference. So Gerard, do you want to defend Justice Alito here or or does Genevieve have a point?

Gerard Magliocca: Well, look, it's a concern, but I mean, there's a couple of things you could say about it. I mean, one is if they laid down some guidelines for how states are supposed to do this, that would reduce the number of disagreements that you'd have. Second, Congress might well respond with a statute that says, okay, this isn't working that well, or it's not the best way, so let's have a national process. I mean, allowing the states to do it doesn't preclude Congress from coming in and saying, no, we actually think we should do it. in a national single procedure.

Look, I understand that they may not want to have to do that, right? I mean, it's not, it would be not easy. You know, that's not necessarily a reason to say there's a constitutional rule against it, right, to say, we don't want this work or we don't want this job. So, I mean, I think it's a valid concern, but the question is, Is it then lead to the conclusion that it is unconstitutional, right, for states to do this? And I think that that's the part where they didn't really explain that or offer a convincing answer for that.

Benjamin Wittes: Genevieve also asks, do you believe, based on the oral argument today and the seeming pursuit of a judicial off ramp, that the court is more likely to let the D.C. Circuit Court of Appeals opinion on immunity stand on its own? It seems like they want to avoid political hot potatoes. So there's been a lot of speculation about the relationship between these two cases. Do you see any relationship, or are these just two hot potatoes that happen to land in their laps in more or less the same time? Does resolving one in Trump's favor create space to, you know, stick your thumb in the eye on the other one, or are these or is it just nine people who are unaccountable and unaccountable people are unaccountable?

Gerard Magliocca: Well, I mean, I don't know how much of a relationship it has. The only thing that occurred to me is that the argument that Trump was not an officer of the United States, right? And that's why Section 3 doesn't apply to him is awfully hard to sort of square with the same time saying, yeah, but he's not above the law when it comes to being prosecuted criminally. That, those don't quite go together. So maybe that the fact that that criminal case was out there and that question was out there would make them less likely to want to go with the officer of the United States argument. And they, I mean, don't seem to be all that interested in that argument today. I mean, one or two of them asked questions about it, but they didn't seem to want to use that as the reason.

Roger Parloff: I really think this is Chief Justice Roberts's, you know, thing. I think he would love to give one bone to this side and one bone to that side and do it in very close proximity and time frame.

Benjamin Wittes: All right, we have a question that gives rise to a one-word answer from Josh. Is it even possible to prosecute Trump under 18 U.S.C. 2383 before the election? Answer, no. Not if you mean a completed prosecution.

I can't tell if this question is meant seriously or sardonically. So let's, I'm gonna direct it at Quinta. Rick asks, did the originalist slash textualist arguments never even come up?

Quinta Jurecic: Yeah, so they, they came up at, at great length. Justice Gorsuch in particular got kind of snippy about them. There's, you know, in terms of pulling apart the distinction between officer of and officer under, there was a nice little moment where Justice Kagan asked if the court would be able to get to that officer stuff later on. So they, they did address those issues as we've been discussing. There was a use of history throughout the argument and, and looking at Griffin's case as an example of how the original public meaning of, of Section 3. I will say I, I think it's fair to say that we all agree that the originalism wasn't particularly good originalism insofar as that the history was a bit off but it certainly did feature.

Benjamin Wittes: All right, a few more questions and then we're going to wrap up. Nathan asks, can someone please highlight the mechanisms by which the Solicitor General and perhaps even the special counsel on behalf of the United States could have participated in the investigation in the case of Trump v. Anderson. Does anyone see it might have been better for the case, if not for their own cases, if they actually had filed an amicus and requested time for oral argument? Is it too late for them to do so or for the court to reach out?

So, yes, it is too late. The case is submitted, but I have wondered about this myself and I'm curious, Gerard, for your thoughts on it. Normally, when the Supreme Court considers a question, much less a question of first impression, about the meaning of a provision of the Constitution with significant implications for the presidency the SG is in the conversation, and in this case they treated it as a dispute between some Colorado voters and a candidate with no input either from the SG. I think the special counsel is less important, but no input from the Justice Department institutionally. Isn't that weird?

Gerard Magliocca: Yes and no. I mean, you can understand why the Solicitor General might not want to get involved because it would be a case involving her superior's likely opponent, right? I mean, I was never quite, I'm not quite clear on the etiquette of these things. Like if the Supreme Court asks for the Solicitor General to get involved, is that, something that can be declined or is just-

Benjamin Wittes: It can be but it never is. When the Supreme Court requests the views of the SG the SG provides a brief.

Gerard Magliocca: Right. So, so maybe this is kind of like they didn't ask because they didn't want to put the SG in a position of, well, in an uncomfortable position. So that's a possibility. And maybe they thought it best just to, to not go there. Yeah. So I can see why maybe the request wasn't made or not sure what would have happened if the request was made.

Benjamin Wittes: Yeah, I, I gotta say, I think the request should have been made and I think the SG's office should have weighed in about it. It's a, a question of the meaning of the federal Constitution as pertains to the United States presidency. It seems like the institution of the United States should have something to say about it and I, don't deeply care if it puts them in an uncomfortable position. By the way, that bridge, that ship sailed when they indicted the man. And so, like, I, I actually agree with the premise of the question. I would have wanted to hear from the Justice Department, and I think the Justice Department would have weighed a lot of different factors that none of the individual litigants here have particular interests in.

So we're going to do one more question. This is from the estimable anonymous attendee who asks a lot of good questions. I'm not sure whether this is one person or numerous people. But this question has come up a lot of times and, you know, we just happened to have Gerard here today and it's great when you have somebody who knows the answer to a question like this.

I haven't heard much discussion of the clause of Section 3 that talks about providing aid and comfort to insurrection. It seems to me that this is pretty much a no brainer, given Trump's lack of action and the ‘we love you people’ video afterwards. I'm not a lawyer, so there may be some reason, fairly obvious, that I'm unaware of, but I would really appreciate hearing about why aid and comfort hasn't seemed to play a role in this whole thing. So yes, anonymous attendee, there is actually a reason, and it came up at oral argument today but Gerard can explain it far better than I can. Why does the poor aid and comfort language never get any aid or comfort?

Gerard Magliocca: Right, so it's because the aid and comfort language is best read as applying only to foreign enemies not domestic insurrectionists. And foreign enemies basically means people we are in a declared war with. So the reason for that is because it's basically drawing from the language of the treason clause in the original constitution. So, and, and it's worth pointing out that, you know, it's possible also that it was meant to apply only to people prosecuted for treason. That's another theory because at the time Jefferson Davis was being prosecuted for, for that crime. But whichever one, one of these you pick, the answer is it wouldn't apply to an insurrectionist domestically.

Benjamin Wittes: All right, we are going to leave it there, folks. Roger Parloff, Gerard Magliocca, Anna Bower, Quinta Jurecic, thank you all for joining us today. You're all great Americans, and we will see you soon.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Hey, folks, you can get ad free versions of this and other Lawfare podcasts by becoming a material supporter of Lawfare on our website, lawfaremedia.org/support. And in one go, two birds, one stone, you'll also be able to pose questions to our panel and become part of our conversation, joining the Zoom webinars on which we record Trump trials and tribulations and other live events.

These benefits are available only to our supporters. The Lawfare Podcast is edited by Jen Patya. Your audio engineer this episode was the great Anna Hickey of Lawfare. Our music is, as always, performed by Sophia Yan. Thanks for listening.