Trump Loses Immunity, Johnson Loses Control

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Speaker 15 Welcome to Pond Save America. I'm John Lovett.

Speaker 15 On today's show, Nikki Haley loses the Nevada primary to none of the above, and legendary Nevada political reporter John Ralston stops by to help explain what happened and what it means for November.

Speaker 15 Strict scrutiny's Kate Shaw breaks down a federal court's ruling that eviscerates Trump's claim he is above the law and not subject to criminal prosecution.

Speaker 15 But first, yesterday, House Republicans planned to impeach Homeland Security Secretary Alejandro Mayorkas for the high crime of overseeing policies they don't like, and they wanted to move forward on a cynical standalone funding bill for Israel as a way to avoid providing the aid Ukraine needs to avoid losing the war.

Speaker 15 Despite the legislative genius of Speaker Just Think About Baseball Mike Johnson, both efforts failed.

Speaker 15 Joining us now is Danielle Adiaz, Congressional Reporter Reporter at Politico, and author of their newsletter Inside Congress. Danielle, welcome back to Pod Save America.

Speaker 17 Thank you for having me on this crazy week.

Speaker 15 Danielle, first of all, I understand that you're in Virginia at the House Democratic Retreat today.

Speaker 15 I don't know if that's like a spa thing, if there are sound baths, but what's the mood and what are Democrats saying right now?

Speaker 17 I mean,

Speaker 17 it's hard to overstate how giddy they are that they have this

Speaker 17 mind-meld union community.

Speaker 17 They all vote together watching House Republicans totally melt down last night when they were doing these two pretty crucial votes for leadership, which was, of course, whether to impeach Alejandro Mallorca, his Department of Homeland Security Secretary, something they've been talking about doing for months, and also a standalone bill that would, or standalone aid for Israel that didn't include Ukraine, that also failed.

Speaker 17 And I don't want to get into the weeds, but

Speaker 17 Speaker Mike Johnson tried to pass that using a procedural rule that meant that it would need two-thirds support in the House. So he was betting that enough Democrats would support this.

Speaker 17 That's not what happened. And it's really, really

Speaker 17 quite crazy. I mean, I think the best way to describe what was happening in Congress this week, what we saw last night with the House Republican conference, is like a dumpster fire emoji.

Speaker 17 It's truly, it feels,

Speaker 17 I want to say that it feels like the House speaker's race, like when they booted McCarthy, like that kind of chaos, but it's even crazier because there is a speaker and there is leadership and there is, you know, they're trying to pass legislation that they just can't.

Speaker 15 There was a split screen over the last couple of months. You had Democrats and Republicans in the Senate.
working together on

Speaker 15 a series of bills to fund the government that that would then die in the House.

Speaker 15 Republicans in the House would say, we need to do individual funding bills, exactly the way the Senate was doing it, but then they couldn't get anything through, right?

Speaker 15 They couldn't pass,

Speaker 15 they could not, they barely could prevent the government from shutting down. You have in the House, you have Republicans pushing for an impeachment of Mayorkas.

Speaker 15 And in the Senate, you have Mayorkis on behalf of the administration working with Lankford, Murphy, Cinema, and others to try to come up with an actual deal to address the problem.

Speaker 15 In the House, Marjorie Taylor Greene, I thought, said something that was, I think, revealing, which is the only way we'll control the border is by impeaching Majorkas.

Speaker 15 And yet that cynical gambit, right? They're refusing to go along with actual legislating to fix the problem, but they can't even get their cynical gambits across the finish line. What happened?

Speaker 15 Why did this impeachment effort not pass?

Speaker 15 You know,

Speaker 15 it led to a tie and they had to kind of walk it back. But what, what, what, why did it fail?

Speaker 17 Well, first of all,

Speaker 17 Johnson has like a three-vote margin to get anything across the finish line. That's like number one, even more slim.
It's like razor thin, right? Like he can only afford to lose three to four votes.

Speaker 17 And they have an absence because

Speaker 17 Steve Scalise is getting cancer treatment. And that's something that, you know, everyone has known about for a long time since he came out and said that he had cancer.
But then also

Speaker 17 he knew, that's another thing that you really have to,

Speaker 17 when it came, let me backtrack, when it was House Speaker Nancy Pelosi, the joke within people that knew her, and when I say people that knew her, her aides, people on the other side, reporters, you know, the Capitol Hill community, is that she would never put a bill on the floor that she didn't know, that she didn't have the votes for.

Speaker 17 Pelosi was someone who, as many have said, ruled with a Gucci glove. She knew how to get the votes and she never put a bill on the floor that didn't have the votes.

Speaker 17 Now, we've seen in this Congress, first it was McCarthy, now it's Johnson, put bills on the floor

Speaker 17 that don't have the votes. And sometimes it's the first step of that vote passage.

Speaker 17 Like we call it a rule, like to advance legislation, don't need to get too technical, but McCarthy would put rules on the floor and he wouldn't have the votes.

Speaker 17 And now we saw Johnson put bills on the floor last night that he knew didn't have the votes, but he put them on the floor anyway. And

Speaker 17 these members that voted against it, and specifically, I'm thinking of Mike Gallagher, who this morning said leadership knew I wasn't going to support the Mayorkas impeachment, and they've known for a month.

Speaker 17 I've been very clear about where I stand on this issue. It's very surprising to watch

Speaker 17 Johnson just put bills on the floor that are not going to pass and be okay with that embarrassment of what was last night that he put two bills that were pretty high stakes and watched in real time that there weren't enough votes.

Speaker 17 So, I think it shows first that he is figuring out how to govern in real time.

Speaker 15 Yeah, that's for sure.

Speaker 17 That he's figuring out how to govern in real time. And then also, it shows that the conference is so broken.
They don't really have,

Speaker 17 and normally it's okay to have some members that aren't supporting things.

Speaker 17 I think of, you know, when the progressives would vote against things when Pelosi was speaker, but their margin is so thin, he can't can't afford that. And he's not planning ahead.
So

Speaker 17 I don't, I guess they're going to get Scalise here next week and they're going to try to pass this again. And that's what we're hearing

Speaker 17 with one vote, with a one vote margin, you know, like just one vote to get it over the finish line. And then they'll impeach my York guest.

Speaker 17 But then, of course, it doesn't even matter because this is going to get buried in the Senate.

Speaker 15 Right. It's already dead in the Senate.
It's already Republicans have come out against it in the Senate.

Speaker 15 So

Speaker 17 it's one example of many of just pure dysfunction. I know I keep saying that word, but I don't want to describe it.

Speaker 15 But it's like, hey, man,

Speaker 15 you know,

Speaker 15 you know, you didn't have a lot of training for this in the Art Museum, but now you're here. If you're going to pull a bunch of bullshit political stunts and not do anything,

Speaker 15 it's pretty embarrassing to, you're not even able to complete your stunts, right? Like he can't even, he's not governing.

Speaker 15 And he's not succeeding at his, like, who is, who is getting anything out of this? Like, who does this kind of thing serve? Right.

Speaker 15 Like, oh, they'll come back next week, get a Mayorkis impeachment, then it goes to the Senate and just dies.

Speaker 15 That's sort of the, there's sort of an embarrassing, an embarrassing, some kind of a process that's, that's very quick.

Speaker 17 And by the way, they're still like, they're still dealing with, I'm thinking specifically of that New York race that's happening in the next couple of weeks, and they need that seat.

Speaker 17 That was George Santos.

Speaker 17 And I even heard,

Speaker 17 and I think it was a Republican in the conference saying, now people are probably missing George Santos because they expelled him.

Speaker 17 But that's really like another example of just like the chaos of they're wanting to keep someone who's been indicted for the sake of having a vote to get things across the finish line.

Speaker 17 And then this is all taking place while this election is happening, the special race that they have a seat they need. And it's not a really good example of how Republicans can govern.

Speaker 15 Yeah.

Speaker 17 Which Democrats, again, as I'm here, are seizing on that, right?

Speaker 17 Like that's the messaging they're going to have in the next two days at this Democratic retreat is we deserve to have the house back because we can govern.

Speaker 17 And that's, and they're like, we don't even have to prove it. Like, watch what's happening right now.

Speaker 15 And now heading into a potential, even if, let's say they do get the votes, okay, you have,

Speaker 15 you refused to vote on border security, but instead decided to impeach the person negotiating and trying to figure out how to actually solve the problem.

Speaker 15 Like, I don't know that that's a good story for them.

Speaker 15 It is amazing to me how in the last week, this is an issue on which they believe they can win on, that they have gone on the record and saying, We like the crisis at the southern border so much, we don't want to fix it so that we can run on it.

Speaker 15 Like, I don't know that that's good politics for them.

Speaker 15 On the standalone Israel bill, which also failed,

Speaker 15 just very quickly, because we've taken a lot of your time, but like what happened there and

Speaker 15 why did Johnson want to bring this vote? And

Speaker 15 why did it fail?

Speaker 17 Well, Johnson used the standalone Israel bill as

Speaker 17 a proof that he wants to do something in the wake of the Senate supplemental kind of falling apart, right?

Speaker 17 He announced that he was going to do this on Saturday.

Speaker 17 It was only a couple of days ago that he announced that he was going to put this bill, you know, it's felt like a month in the last like three days.

Speaker 17 And then the deal came out Sunday, which we knew was going to happen. The text that was unveiled by this and these negotiators and blessed by leadership.
And then

Speaker 17 even members of his own conference didn't want to support this bill. And I'm talking about the House Freedom Caucus members because there were no offsets to pay for this legislation.

Speaker 17 But it was also kind of a meaningless vote because President Joe Biden said in a statement yesterday, two days ago,

Speaker 17 that

Speaker 17 it was two days ago. He would veto it that he would veto it.
And so why would Schumer put that on the floor in the first place either?

Speaker 17 So it was kind of just a messaging bill to prove that Republicans care about Israel and want to help, right?

Speaker 17 And

Speaker 17 he needed Democratic support. And

Speaker 17 again, don't want to get into the details, but basically he put this on the floor as a suspension, which basically means he needs two-thirds support from the House.

Speaker 17 And he knew he didn't have Democratic support. Democratic leaders yesterday in their conference meeting basically told voter told their caucus,

Speaker 15 vote your conscience. Yeah, but don't.

Speaker 17 But we are not supporting this. We're not going to tell you to vote against this.
And of course, there were Democrats that did support it, but in the end, it wasn't enough. And

Speaker 17 Johnson knew that it was going to tank, and he did it anyway. So

Speaker 17 many people are questioning. I mean, he was defensive of why he did it in just a press conference he had at 11:30 today on Wednesday, but he said that he

Speaker 17 they need to move on legislation when the Senate's not acting. That's his argument.

Speaker 17 But the disconnect between the two is pretty wild considering when Mitch McConnell was leader in the Senate and Pelosi passed bills on the House, the Senate would take that legislation up or the House would take up legislation that the Senate leader, Republicans would pass.

Speaker 17 So it's just so different in this Congress with this divided government. And that's not happening anymore.

Speaker 15 And what is, just to come full circle,

Speaker 15 what is the possibility of a...

Speaker 15 of going back, you know, Schumer talked about wanting to bring this up if this, if the, if the border bill either gets a vote or fails, whatever,

Speaker 15 that he wants to go to the Ukraine-Israel-Taiwan standalone bill, which is what they were trying to do before the border hostage-taking took place from these Republicans.

Speaker 15 And again, the reason Ukraine and Israel and Taiwan are tied together and why Mike Johnson tried to do Israel alone is because the belief was so many people want to do the Israel and Taiwan funding that it will be enough to make sure that the Ukraine funding passes, which again, a majority in both the Senate and the House want to pass.

Speaker 15 So are we

Speaker 15 back to a standalone? And did Republicans fall right into the Democratic trap set from the very beginning?

Speaker 17 I mean, that's what I'm, it's funny. I'm seeing a lot of takes, and it's a lot of Republicans saying this is what Democrats wanted in the first place.

Speaker 17 But as a reporter who that has covered this from the very beginning,

Speaker 17 there was good faith negotiations on this.

Speaker 17 And I don't think that that is at all what the intention was from Democratic leadership is to have them just go right back, you know, waste the last four months and then have these guys who negotiated for weekends and we were working weekends too, covering these negotiations.

Speaker 15 It feels and I don't want to forget about that. And I'm sorry I didn't mention that.
All right. When these people work, you have to work on the weekend.

Speaker 15 And now you're following these people around, and that sucks.

Speaker 17 Well, that's sweet of you. But I think, I mean, we know what we signed up for.

Speaker 15 And that's right.

Speaker 17 I think

Speaker 17 if this all ends up being, and I don't know yet, yet, I think this is all, I think even senators don't know yet as I talk to you what's going to happen next

Speaker 17 because this fell apart so quickly and there was no plan B.

Speaker 17 If this all ends up being that it's just a supplemental funding package without border security measures, it really shows just truly how crazy things are right now.

Speaker 15 It does, if that is actually what happens, it really does feel like Republicans were like little kids demanding an ice cream cone

Speaker 15 and

Speaker 15 mom and dad handed them the ice cream cone. Then because they were still so upset and they didn't know how to deal with their feelings, they threw the ice cream cone on the ground.

Speaker 15 And then mom and dad said, fine, we'll leave without ice cream. And now they're like, wait, no fucking ice cream? You know what I mean?

Speaker 17 It's that's a very good, interesting, very good way to describe probably truly what

Speaker 17 it, the chaos that just unfolded in the last week. And it's not a Nover.

Speaker 15 Sometimes I'm reminding myself it's just wednesday it is and it is only wednesday hump day as it were uh so one thomas tom massey uh tweeted this morning a platform i'm no longer on getting rid of speaker mccarthy has officially turned into an unmitigated disaster is the mike johnson honeymoon over do they they miss mccarthy now you have matt gates saying mccarthy would be a great rnc chair did they know

Speaker 17 that i did see that i mean i would say probably the gates eight that's what they that's what they're unofficially called on Capitol Hill, would not ever admit to making a wrong move when it came to booting McCarthy from the conference, but all of his allies and he, and a reminder, he had most of the support of the conference.

Speaker 17 Most of them wanted to keep him. Most of them don't like that this is all taking place.
I mean, I think that they're missing him a lot right now and also

Speaker 17 feeling the effects of what happens when you have someone in leadership that really hasn't done it for very long. Because it really, having experience in leadership means something,

Speaker 17 of course, as we've seen with House Speaker Nancy Pelosi, when she was leader and she was in leadership for so long.

Speaker 17 And then who and then the other members of the Republican Conference who are most of them are new in the last six years.

Speaker 17 So Republicans are really feeling that.

Speaker 15 What's the meanest thing a Republican has said about a Republican to you?

Speaker 15 Off the record or on background?

Speaker 17 Well, I can't, I remember someone saying, and I can't recall, and this was on the record, that Republicans don't deserve to be in the majority. Wow.
Which I thought was pretty, pretty intense.

Speaker 17 And I shouldn't have the name of who said that, but I mean, Republicans have been saying that about themselves for a long time.

Speaker 17 And I've heard a lot, and I should say, I've heard a lot of cussing in the last 48 hours. It's just like members being like, what the hell is happening? I mean, you know, bad worst words.

Speaker 15 I don't know if I'm allowed to cuss. Am I allowed to cuss? Oh, sure.

Speaker 17 Oh, yeah. They're just like, what the fuck is happening? Like, why, what, who is, why is this happening? And then, um, this is embarrassing.

Speaker 17 And, you know, and these are members that vote always with leadership and do want, you know, to pass legislation and move things along.

Speaker 17 So it's, it's some crazy times, unprecedented times, as everyone always says about about the times we live in.

Speaker 15 Daniella Diaz, thank you so much for your time. It's good to see you.
This was fun. Really appreciate it.
And,

Speaker 15 you know, have a, hey, have a great time at that House Democratic leadership spot day that you're at there.

Speaker 15 Thank you

Speaker 15 on Tuesday. Nikki Haley ran in the Nevada primary unopposed and still somehow managed to lose.
If you remember, Nevada is doing a weird thing this year.

Speaker 15 The state held the primary on Tuesday by law, but the Nevada Republican Party is holding a caucus on Thursday, and that's where the actual delegates will be at stake.

Speaker 15 Trump is competing in the caucus, but not the primary. Haley was competing in the primary, but not the caucus.
Somehow, Trump is going to win both.

Speaker 15 Here to explain why the Silver State's primary voting process is so confusing this year and if the results matter, if at all.

Speaker 15 It's the CEO and editor of the Nevada Independent, one of the most celebrated journalists in Nevada, the dean of the Press Corps in Nevada. It's John Ralston.
Thanks for being here.

Speaker 19 Dean of the Press Corps just means I've been around a while.

Speaker 15 No, I know. It's yes, for sure.
Well, I think that if you were an asshole, it wouldn't matter if you'd been around longest. You know what I mean?

Speaker 19 I think we could probably get some commentary about whether I'm an asshole or not. So, but that's a different podcast, I think.

Speaker 15 For sure.

Speaker 15 So, quit dodging my questions. Let's focus here.

Speaker 15 What happened? So, Nikki Haley, just so people understand, this primary didn't have delegates. It was low turnout, but still, somehow she managed to lose to none of these candidates by 33 points.

Speaker 15 What happened?

Speaker 19 So, this, you know, this is a very quirky, strange year, even in our quirky, strange state, right, john so it's it's

Speaker 19 it's her fault that this happened by the way i think she could have prevented it um she ignored nevada she said nevada is not a fair state that the process is rigged and she is correct about the caucus but as you know better than anybody the The delegate count early on is not nearly as important as gathering momentum, controlling the narrative from the national media to say that you're still viable, you're still in the race.

Speaker 19 People get tickets out of Iowa, then they go to New Hampshire, and they have momentum coming into Nevada. Nikki Haley's a long shot.
Everybody knows it. Everyone thinks Trump is going to win.

Speaker 19 But if indeed she is serious, then she can't ignore Nevada because South Carolina is still two weeks plus away. You've got to try to maintain some momentum.
Minimum investment or a cheap date.

Speaker 19 Come here, do a rally or two, run some ads.

Speaker 19 Say that Donald Trump is a coward. He's a chicken.
He's afraid to face me in the real primary. So he created a caucus that he's rigging like he accuses everybody else of rigging elections.

Speaker 19 Come vote for me. Would it have headed this off? Maybe not, but certainly she wouldn't have lost by the huge margin that she lost by more than two to one, as you pointed out.

Speaker 19 And now the headlines across the country are not Haley wins Nevada primary. It's Haley loses to none of the above.
Ouch, worse than you can ever imagine. People are making fun of her now.

Speaker 19 And as you know,

Speaker 19 the worst thing that happens here in politics is mockery and ridicule, much worse than castigation.

Speaker 15 You mentioned

Speaker 15 that Trump's participating in the caucus.

Speaker 15 How did we end up in a situation where Nevada had a primary without delegates today and a caucus with delegates on Thursday, and candidates had to choose which one they wanted to participate in?

Speaker 19 Yeah, I mean, it's a crazy situation.

Speaker 19 It's confused a lot of really smart people and some voters who aren't paying close attention and wondered yesterday why donald trump was not on the ballot when they got to polling places and either voted for none of these candidates or didn't vote at all nevada was a caucus state for many many years as you know but then after the nightmare caucus in iowa in 2020 and nevada essentially had the same system harry reed who the late harry reed who would then control the democratic party and his allies said listen it's time to stop this caucus it's not a pure process strange stuff happens.

Speaker 19 Let's go to a primary. Democrats control the legislature, but it ends up in a bipartisan vote.
Not all Republicans voted for it, but a handful in each House did. Yeah, let's go back to a primary.

Speaker 19 Only been a primary here. You know, there hasn't been a primary in Nevada since 1996, but let's go back and do it this way.
That's the state law.

Speaker 19 But they left open the possibility for the parties themselves to choose how they were going to allocate delegates. Didn't seem like an issue at the time, John.

Speaker 19 But then last year, the Republicans suddenly said, oh, we can't let this happen.

Speaker 19 We need more secure elections, raising all the election integrity nonsense again. We're going to have

Speaker 19 a process that you can trust with voter ID, no same-day registration. And, oh, by the way, you have to pay us $55,000 in extortion fee to participate.

Speaker 19 And if you participate in the caucus, you can't be on. the primary ballot.
And they even put in rules. I'm sorry for belaboring this, but it's so crazy.

Speaker 19 They even put in rules that said super PACs cannot attempt to influence this election.

Speaker 19 Obviously, trying to box out DeSantis when never backed down actually didn't look like it was going to back down and had $200 million in the bank and could have been a force, right?

Speaker 19 So DeSantis filed for the primary, for the caucus, excuse me. And Haley got at the last second, said, I'm going to go in the primary and then didn't do anything.

Speaker 15 So

Speaker 15 we have this caucus tomorrow.

Speaker 15 What are you looking for? I mean,

Speaker 15 is there any, how's none of these candidates doing? Is none of these candidates visiting the state? Is none of these candidates running any ads? How's their campaign looking?

Speaker 19 None of these candidates has had some rallies, I understand, but no one showed up.

Speaker 19 So

Speaker 19 there is no none of these candidates on the caucus. They control that ballot.

Speaker 16 Oh, that's right. That's right.

Speaker 19 And so it's essentially just, it's Trump versus a guy no one's ever heard of named Ryan Binkley. So Trump is going to win all the delegates.
He's going to win all of the votes.

Speaker 19 But the process is far from transparent. They're not letting the media view all of the counting processes.
Now, let's be clear about this, too.

Speaker 19 The state party chairman, Michael McDonald, has been with Trump since 2016. He's openly endorsed Trump despite promising to be neutral.

Speaker 19 And so that has added to the perception, which really is the reality, that this whole thing has been fixed for Trump. There's only one interesting thing to watch, though, and that is this.

Speaker 19 Nikki Haley got about 21,000 votes.

Speaker 19 The turnout was about 15, 20%. She got 21,000 votes, even though she got crushed.

Speaker 19 I'm not sure 21,000 people are going to show up the caucus. Maybe they will.
That would be a relatively large turnout. for a caucus for the Republicans.

Speaker 19 And even if more than 21,000 show up, you know, is he going to get more votes? Is Trump going to get more votes than Haley? Because if he doesn't, that's going to be a real embarrassment for him.

Speaker 19 So

Speaker 15 other than this idea that the election fraud justifies not doing a primary, but actually doing our own separate caucus, which obviously is silly, but like

Speaker 15 what is the logic for rebuffing this effort to switch to a primary? It's not obvious on its face why that's, you know, why the why the MAGA types would prefer a caucus versus a primary.

Speaker 15 Trump has not, you know, Trump would have had no problem winning this primary, right?

Speaker 19 He would have won the primary. There's no question about it.
But I think what they were concerned about, about, because they want to show Donald Trump dominating

Speaker 19 in every election that he's in, we're a universal male ballot state since COVID. So every Republican got a ballot.

Speaker 19 You could make an argument, and I think some people close to Trump did, and some people in the state party here, that if every Republican gets a ballot and a lot of the non-MAGA types vote, that maybe his margin of victory, while he would have won, wouldn't be as great

Speaker 19 compared to a caucus where they can only vote during a certain time. And by the way, this is not a pure caucus either.

Speaker 19 Caucus used to be you go in, you argue with your neighbors, 15% threshold, you winnow people, and then

Speaker 19 people could just drop off ballots. So

Speaker 19 it's not a real caucus. They can drop off a ballot and leave.
And

Speaker 19 they did that, I think, so they could increase turnout in the caucus to make sure Trump gets a lot of votes.

Speaker 15 Also,

Speaker 15 what kind of, you know, I'm sure Binkley has a great argument, but what kind of caucus?

Speaker 15 It's not like there's like, what kind of of ferocious debate inside of the caucus amongst neighbors could there possibly be? Like, I don't know.

Speaker 15 Like, it is, it is, even if you didn't have the fact that you can just drop off ballots.

Speaker 15 Basically, a person running unopposed in a caucus is a weird way to spend a Thursday evening.

Speaker 19 It is. And that's why there's some sense that maybe turnout won't be great.

Speaker 19 Now, that's why Trump came here a few days ago and urged all of the Republicans to go caucus, don't go into the meaningless primary.

Speaker 19 They've come up with some spin and as Trump's want and his campaigns want, outright falsehoods about what the primary was versus the caucus and who kept his name off of the ballot to try to energize people to come and caucus.

Speaker 19 It's going to be interesting to see how successful they were in doing that.

Speaker 15 Anything to learn from Joe Biden defeating none of these candidates and Marianne Williamson? None of these candidates came in second. Marianne Williamson came in third.
He won 89% of the votes.

Speaker 15 I'm not sure how much you can take away from that, but did you have anything that you observed?

Speaker 19 I think Mary Ann Williamson is not going to win the nomination.

Speaker 19 You heard this first on this podcast. Take that.

Speaker 15 That's a prediction.

Speaker 19 But seriously, here's a problem. I mean, the Democrats are touting, they had much better turnout than the Republicans.
Biden got 90% or close to it. This shows that they're energized, etc.

Speaker 19 But there is no correlation, in my experience, between what happens in a February 6th primary and in November. Totally different universe.
There's going to be 70, 80% turnout in November.

Speaker 19 But as a trial run for the so-called Reed machine here, the Democratic organizing machine, they did fine. But that's nothing really to brag about or to project going forward, I don't think.

Speaker 15 So Nevada, obviously, in November will be an important swing state for the presidential. It's also going to be an important Senate race there.
What are you seeing right now?

Speaker 15 We've seen some polls that I think are pretty concerning for Democrats, obviously, with Trump winning the state.

Speaker 15 That Senate seat is obviously incredibly important.

Speaker 15 What's the situation on the ground right now?

Speaker 15 What are you seeing?

Speaker 19 Smart Democrats I talk to, including those involved with the Reed machine, they're worried.

Speaker 19 They're concerned. I mean, Trump only lost the state by two and a half points

Speaker 19 in 2016 and 2020.

Speaker 19 And so they think it's competitive. They are correct.
Some of the demographic shifts are concerning. Catherine Cortez-Masto, the first Latina ever elected to the U.S.

Speaker 19 Senate, only won by 8,000 votes, and they had to essentially drag her across the finish line.

Speaker 19 Jackie Rosen is not nearly as skilled a politician or experienced a politician, although she's become a formidable fundraiser. And so they are very, very concerned.

Speaker 19 What bolsters them, though, is that they still have that machine.

Speaker 19 And the Republican candidates generally are not great

Speaker 19 in that Senate race.

Speaker 19 The NRSC, the National Republican Senatorial Committee, has banked all of its hopes on a guy who's never won a race and who's barely lived in Nevada for very long, got crushed in the primary for the U.S.

Speaker 19 Senate last time.

Speaker 19 And so they're praying every day he gets through the primary against a couple of MAGA types, either of whom, if they win, especially one of them who's a pure conspiracy theorist, one of the worst in the country, that's over for the Republicans in the Senate here.

Speaker 19 And that could affect the presidential race.

Speaker 15 John Ralston, thank you so much for your time. This is very helpful.

Speaker 15 Next time, I'd like to be in Las Vegas. That's where I'd like to be doing these conversations.
That's where I prefer to have them. But thank you so much for your time.

Speaker 19 I hope you do come to Vegas.

Speaker 15 You know, Das Me twice.

Speaker 19 Thanks for having me.

Speaker 15 When we come back, Kate Shaw walks us through the DC Circuit Court's ruling against Trump's claim to presidential immunity and what it means for the timing of Trump's many criminal trials.

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Speaker 15 On Tuesday, after making us wait a very long time, the D.C.

Speaker 15 Circuit unanimously and forcefully rejected Donald Trump's legal argument that he is immune from prosecution in the 2020 election interference case because he took those actions as a sitting president.

Speaker 15 Here to talk us through the ruling and what it means when this case and several other trials begin is the co-host of strict scrutiny, our very own Kate Shaw. Welcome back to the pod.

Speaker 16 Thanks so much for having me, John.

Speaker 15 So let's start with the opinion.

Speaker 15 Nobody really expected the judges to agree that presidents are not subject to the laws of the United States while executing the laws of the United States because it would be too confusing.

Speaker 15 But this was a SmackDown nonetheless.

Speaker 15 You did a great bonus episode on this yesterday that everybody should check out. But can you just walk us through it? What stood out to you the most?

Speaker 16 Sure. Now, it did take a bit longer than we wanted.
And that's because every single day of delay moves us closer to a world in which Trump cannot be tried prior to the November election.

Speaker 16 But, you know, now that I've sat down and read it carefully, it is a very good and very thorough opinion. And it did involve a lot of historical research and

Speaker 16 really intentionally selected quotes from conservatives on the Supreme Court, like John Roberts and Brett Kavanaugh and Neil Gorsuch. So, you know, this stuff takes a little time to craft.

Speaker 16 So, you know, now that it's out, like, the quality is just fantastic. And a couple of things that I thought were striking.
One is it is a percurium opinion, meaning just an opinion of the court.

Speaker 16 There is not a single identified author. And that's pretty unusual in an important case like this.
That's more typical in routine and short orders.

Speaker 16 And I think it might suggest a couple things. One, it is not crazy to be concerned about attaching your name and identity to an opinion ruling against Donald Trump in this moment in time.

Speaker 16 And so no one can invey against a Judge Pan opinion or a Judge Child's opinion. It's just the DC Circuit opinion.

Speaker 16 And in a moment where judges are getting swatted and threatened, I think that might be why it's a percurium opinion.

Speaker 16 You know, in terms of the substance, there are just like a couple of lines that are worth flagging. One is, you know, just the bottom line holding, right?

Speaker 16 We cannot accept that the office of the presidency places its former occupants above the law for all time. Like that's kind of the bottom line.

Speaker 16 And I also liked that the opinion quotes and it kind of can't improve upon Judge Chuck and the district court, who wrote that every president will face difficult choices.

Speaker 16 Whether to intentionally commit a federal crime should not be one of them. Real Mike Drop in the district court gets a second airing in this opinion.
So those are a few takeaways.

Speaker 15 So you and Melissa and Leah broke down all the ways in which Trump's arguments were sort of in delicate legal terms laughed out of court. What, to your mind, is Trump's best argument?

Speaker 15 Or what is the best argument for some form of immunity that wasn't made by the Trump team?

Speaker 16 None of these arguments are good arguments. They're just not.

Speaker 15 They're all bad arguments.

Speaker 16 I mean, there is an argument that has some intuitive appeal in general terms, and it has some support in the law, which is that presidents, while they are presidenting, do get special treatment under the law because the country simply couldn't have them embedded in a lot of litigation.

Speaker 16 And so that's not frivolous, that's not crazy, and the law supports that.

Speaker 16 But the extension that Trump was seeking here, which is to fully insulate ex-presidents from any kind of accountability, including for doing crimes, just doesn't really have any support in text, in history, or in logic.

Speaker 16 And that's, you know, essentially what the court concluded, you know, in 57 pages.

Speaker 15 Aaron Ross Powell, you know,

Speaker 15 There are a lot of people that work in the White House and around the president whose job is to make sure that the president is not breaking the law. And those lawyers don't always agree.

Speaker 15 There's disagreement about what the law requires the president to do, what the president's powers do and do not allow. And

Speaker 15 could you see some argument made

Speaker 15 in that area where there is a legitimate dispute as to whether or not a president was upholding the law or breaking the law? And then why is that kind of more delicate question not at issue here?

Speaker 16 Aaron Ross Powell, Jr.: Well, I mean, that's mostly a question about civil liability.

Speaker 16 And the law has long made clear that you can't sue a president because of some official act that they took, even after they're president.

Speaker 16 So that's the Nixon versus Fitzgerald case, where some disgruntled ex-official who said that he was unlawfully fired sued then ex-president Nixon.

Speaker 16 And there, the court said, actually, even ex-presidents get absolute civil immunity if we're talking about actions they take within the scope of their official duties.

Speaker 16 So that's something that presidents have long been able to operate kind of secure in the knowledge of. They're not going to get sued civilly because of things they did as president.

Speaker 16 But no court has ever said that the same logic applies to crimes committed as president.

Speaker 16 And so when Trump makes this argument that it would be totally chilling and destabilizing to future presidents to have this specter of possible criminal prosecution hanging over them, that's always been the case because they've never had any kind of immunity from criminal criminal prosecution.

Speaker 16 And back to the Judge Chuckin line, like if what that does is chill presidents from doing crimes, I don't see why that's a problem.

Speaker 15 Yeah,

Speaker 15 that sounds like a feature, not a bug. Yeah.
So let's talk about what happens next. Will Trump appeal to the DC circuit, or

Speaker 15 was the order that went along with this ruling written in a way that means that Trump will go directly to the Supreme Court?

Speaker 16 Yeah, it was very carefully crafted, I think, to make sure he's going to just go to the Supreme Court.

Speaker 16 So a lot of the time, if you lose before a three-judge panel, which Trump did here, you can ask the full court to review

Speaker 16 the opinion of the three-judge panel as kind of an intermediate step before going to the Supreme Court. And he could still do that.

Speaker 16 But what the order accompanying the opinion said about the mandate, which is just like the thing that sends the case back down to the trial court, is that the mandate is stayed until Monday.

Speaker 16 So nothing happens until Monday. Monday, the case goes back to the trial court and proceedings can resume.
resume except if he asks for a stay in the Supreme Court.

Speaker 16 But asking for the full DC circuit to review the opinion isn't going to have any effect on the mandate. So that essentially disincentivizes him asking the full court to review.

Speaker 16 It means he'll go right to SCOTUS on Monday, and that will stay the mandate. So that'll mean things are paused, and then the ball is in the Supreme Court's court.

Speaker 15 So as you pointed out, it was a long wait for this opinion.

Speaker 15 The opinion wasn't authored by a single judge. Now, you pointed to this.

Speaker 15 One reason might be that they were just worried about the attention that comes with having written an opinion.

Speaker 15 But another reason might be that they are aware that they are writing for history, that this is a matter of

Speaker 15 incredible importance, and that potentially the reason they took so much time and did this opinion by the court, not by a judge, is to send a signal to the Supreme Court that they don't necessarily need to take this up, that they can just allow this ruling to stand.

Speaker 15 Do you think that's possible? Or do you feel like the Supreme Court will both, from a political standpoint and a legal standpoint, feel an obligation to have a say in a case this important.

Speaker 16 You know, we debated this a little bit on our podcast yesterday.

Speaker 16 I think there is a real chance, not a, you know, more likely than not chance, but a real chance that just as you suggested, the strength of this opinion, the fact that it's an opinion of the court,

Speaker 16 and the correctness of the opinion means that maybe the Supreme Court just denies cert and this stands as the final word on absolute criminal immunity, and then the trial happens.

Speaker 16 So I think that is a possibility and doing the opinion the way they did may have increased that likelihood.

Speaker 16 But I do think that it's still more likely that the Supreme Court will think it's the final answerer of all the important questions. And so it should actually have a chance to speak on this question.

Speaker 16 And one thing to say on that, and timing is of course critically important here, I think if the Supreme Court grants this and then just proceeds kind of business as usual, like decides the case, decides to take the case in a week or two, hears arguments in April,

Speaker 16 decides the case in May or June, we We basically should understand that as the Supreme Court having like emblazoned in the sky that the court itself is taking away from the American people the opportunity to have a jury decide whether a former president who is a candidate for president is guilty of crimes, and in particular, the crime of attempting to subvert a presidential election and unlawfully remain in office.

Speaker 16 Like, because that's what it'll mean if it takes the case and waits to decide it. It will mean that people will never know what a jury thinks about these charges, which are incredibly serious.

Speaker 16 And that means people both who support President Trump, former President Trump, and oppose. So in some ways, I think everyone should want this to be before a jury so we get an answer.

Speaker 16 And the court slow walking this, which again, business as usual, tempo is slow walking, will mean. And that's how we should understand it.

Speaker 15 Yeah, we'll talk about this in a minute, but they did not slow walk. the question as to whether or not the 14th Amendment bars Trump from being on the ballot.
That they're moving very quickly on. And

Speaker 15 given that I think a lot of people would be surprised to see this court rule that Trump is immune from prosecution,

Speaker 15 what you're basically saying is if the court were to delay, even if they ultimately ruled in that way, it would be akin to siding with Trump and not showing the same concern about a case that might harm Trump's political prospects when they have shown a lot of speed on a case where everyone expects them to rule in Trump's favor.

Speaker 16 Right. Well, and also led where the thing that happened below in the Colorado case ruled against Trump.
So Trump loses and needs to change the status quo, right?

Speaker 16 And sort of to, and so they're accelerating wildly this 14th Amendment case. And then, most likely, although I don't think it's 100% certain, will rule for Trump and he gets to stay on the ballot.

Speaker 16 And then again, maybe they take their time and they do rule against Trump on the immunity. And again, on the merits, I agree.
Ultimately, it's very hard to see them coming down any other way.

Speaker 16 But as a functional matter, that will also be siding with Trump. So the takeaway shouldn't be, well, they give and they take.
Trump wins one, loses one.

Speaker 16 It'll be he wins both because the function of the delay will mean no trial. And so they deserve zero credit.

Speaker 16 And actually, I think they deserve the public knowing that they have been complicit in, again, taking from the American polity, the voters, the right to know what a jury thinks about this conduct.

Speaker 15 So

Speaker 15 how quickly will we know whether or not the Supreme Court is going to move quickly?

Speaker 15 What does a a court that's going to hear this fast and make sure the trial can take place before the election look like? And what does the Supreme Court that's acting to slow this down look like?

Speaker 16 Yeah. I mean, I think, so Monday, I think he files his application for a stay.
And again, that automatically pauses the proceedings. So starting then, every day, the court doesn't act.

Speaker 16 That's a win for him because the trial can't or the trial proceedings can't resume. I think in a week or two, we probably will get some action on the request for a stay.

Speaker 16 And maybe they just deny the stay and then the proceedings resume and that would be really significant.

Speaker 16 Now, that doesn't necessarily mean they wouldn't consider and actually take the case up with a cert petition, but I just, I don't really see them doing it.

Speaker 16 I think they'll deny the stay and say the DC circuit opinion will just stand and the trial will happen. And that again could happen within a couple of weeks.

Speaker 16 Now the trial wouldn't happen immediately, but the pretrial proceedings would resume.

Speaker 16 And so I think then the trial could happen like in April, not March 4th as originally scheduled, but maybe a month or maybe two months later.

Speaker 16 And if they decide to take the case, they could do what they did with the 14th Amendment argument, which was to really accelerate the ordinary timeline. They scheduled

Speaker 16 a special session for tomorrow. It's not ordinarily early February.
They don't hear cases.

Speaker 16 They're taking the bench just for this one case. So they could do the same thing in

Speaker 16 late February if they wanted to.

Speaker 16 The briefing was done in the DC Circuit. The briefing will have to happen in the Supreme Court, but it can all happen in a number of weeks and not months.

Speaker 16 Then they could hear an argument in early March and decide it very, very quickly.

Speaker 16 But again, like, you know, once they're deciding things in late April or May or June, a trial is not off the table under those circumstances. It's just tight.

Speaker 16 And any additional delay might mean that there's no way to have the trial because I think the trial like right before the election is something that, you know, a fair-minded and conscientious judge might be really nervous about.

Speaker 16 It's mid-October. We're going to start a trial.
We can't do that.

Speaker 15 So I think you kind of, yeah, and then it starts to, okay, now the election has happened. And God forbid Trump wins.
Now

Speaker 15 they're going to have a trial before he's sworn in. Right.

Speaker 15 Like these are, it starts to become, I mean, we've never been in a circumstance like this, but it starts to, it all starts to feel impossible.

Speaker 16 Yeah.

Speaker 15 So how does this ruling affect the other sundry federal cases against Donald Trump?

Speaker 16 Well, you know, this is really not about the underlying question of Trump's culpability for the alleged crimes, right? It's not, it's not about. you know, the merits.

Speaker 16 It takes the allegations in the complaint as true and says, if true, if he, as alleged, alleged, tried to overturn the election results and unlawfully remain in office, is he still immune from criminal prosecution?

Speaker 16 And of course, the answer there is no.

Speaker 16 So I think it's mostly got impact on the other cases from the perspective of scheduling, because there's this delicate dance with at least the New York trial, which, you know, of the four cases, you got Georgia, you got New York, you've got this case, you've got the other federal case, the documents case in Florida.

Speaker 16 That's the other case that could go in the relatively near term.

Speaker 16 And so I think actually if this gets back on the calendar, that one probably won't go first. There were some chances this continued to delay.
I think New York would go first.

Speaker 16 And I don't think that's a great outcome. So I think that reduces the likelihood of it.

Speaker 16 But really, this is just the defense that he has asserted, that he's absolutely immune, which isn't really on the table in the other cases.

Speaker 16 I mean, he could make absolute immunity from state prosecution claims as well. I mean, he's made lots of immunity claims.
So I suppose, sure.

Speaker 16 But I don't think that's directly controlled by this ruling, although obviously it's hard to see how if a president doesn't have immunity here.

Speaker 16 He might have immunity from state prosecution, although the the arguments are a bit different.

Speaker 15 So this isn't the only Supreme Court case that could have an impact on the election.

Speaker 15 They're going to hear oral arguments, as we talked about tomorrow, on whether the 14th Amendment bars Trump from running for office again. I am not a lawyer,

Speaker 15 but this has always seemed silly to me, as you know. And I was no match for Lawrence Tribe, but I was not convinced.

Speaker 15 I remain unpersuaded. What is your take on the merits? And then I'd love to hear what you're kind of looking for in the oral arguments.
Sure.

Speaker 16 And I look, I don't know that I'm going to persuade you if Tribe didn't.

Speaker 16 But I mean, your concern, I take it, John, is that there's something that feels anti-democratic, right, about the Supreme Court doing this thing, removing the choice from the voters. Is that right?

Speaker 15 So I do have that concern, but that, and that sort of makes me suspicious of this.

Speaker 15 And by the way, I think it's important that some of the best legal minds in the country do come on a podcast and try to convince a comedy writer of what the Constitution means.

Speaker 15 That is what America is all about. But so, yes, I do have an anti-democratic concern, but I actually, stepping back from that, I have a practical political concern about a system in which

Speaker 15 this self-executing idea puts in the hands of random political bodies, elected officials, individuals in different states, and gives them the authority to question whether or not someone has a legitimate claim to being on the ballot and the kind of world we will live in if that kind of subjective opinion becomes important

Speaker 15 in how we decide who gets to be on a ballot or not, that's my concern.

Speaker 16 Yeah, and I think those are both fair. And I honestly was pretty apprehensive about this issue at first.
And I've sort of very much actually come around.

Speaker 16 And I think for a couple of reasons, I think having both to do with democracy and this question of, well, what would the consequences of the court, right, siding with the Colorado Supreme Court be versus the consequences like on the ground of a different ruling and

Speaker 16 keeping and taking off, sort of how does the world look in sort of both scenarios?

Speaker 16 And in terms of the anti-democratic piece of it, um, you know, it's just like, as I've really, as I thought about it, there are provisions in the Constitution, in particular as to presidential eligibility, that are just anti-democratic, right?

Speaker 16 Like the 22nd Amendment says you can only serve two terms as president, and that is anti-democratic insofar as it means we can't vote for Barack Obama for president.

Speaker 16 Like, he can't run again, and that takes from us the choice to vote for him.

Speaker 16 And if we had an amazing, prospective presidential candidate who was a naturalized but not natural-born citizen, we couldn't vote for them because the Constitution says that.

Speaker 16 And that does, that is anti-democratic. And it takes off the table certain choices.
And I think this provision of the 14th Amendment is understood in the same light.

Speaker 16 We just can't choose an insurrectionist. And then you have these questions of, well, how do we determine if somebody's an insurrectionist?

Speaker 16 But then those are the questions about like what the text and the history and kind of pragmatic considerations tell us about how to read that provision.

Speaker 16 But that, I think, is why the kind of anti-democratic piece of it, to my mind, is not actually dispositive if you kind of press on it.

Speaker 16 And in terms of sort of allowing the proliferation of a lot of decision makers,

Speaker 16 you know, I think that it's,

Speaker 16 here is my concern. If the court says, yeah, he can, he can run,

Speaker 16 the Colorado Supreme Court either didn't have the authority or was wrong in the merits, you know, there's a bunch of different ways they can decide it.

Speaker 16 I don't think that in any way takes off the table either Trump pushing on other eligibility rules, like, for example, the 22nd Amendment.

Speaker 16 Like, I think in a world in which he's told he can run again, he runs again he wins i'm not the only person to observe this but it's not hard to imagine four years from now him mounting a campaign on the grounds that like he was deprived of a real first term by the russia hoax and the 22nd amendment can't be enforced by the supreme court um and so and and and under those circumstances you know

Speaker 16 Do we want or do we not want state officials deciding to throw him off or keep him on the ballot?

Speaker 16 I mean, I'm not sure which way it cuts, but I guess I think that we are now in a world where there have been, there are challenges to these kind of core principles or, you know, settled, previously settled principles about who is eligible for president.

Speaker 16 And I don't think that the Supreme Court allowing Trump to run in any way removes the danger that you just identified of other individuals deciding to make politically motivated judgments about who can and who can't run for president.

Speaker 16 So to my mind, that's actually not a reason to rule for Trump either. Did I in any way add anything to Tribe's case?

Speaker 15 Well, I just, here's my, here's, so

Speaker 15 my problem with that, right, is

Speaker 15 we go from what I think we would all agree is a subjective and difficult question. I actually do think it's a legitimate question.

Speaker 15 And by the way, if we were in a situation where I thought that there was a real chance that a Supreme Court would keep Trump off the ballot, I do believe Trump poses a direct threat to this democracy, and we should be doing everything within our power to keep him from returning to office.

Speaker 15 That poses a mortal danger to the country.

Speaker 15 And if I thought this was a political strategy that might result in a victory, I might be more circumspect because I would view it as having a real chance of leading to Trump being kept from the ballot.

Speaker 15 But because that's not the case, it does feel quite intellectual.

Speaker 15 You switched from a subjective question, which I think people of good faith could disagree, to more of a kind of classic Trump claim, which is, no, I didn't rob that bank.

Speaker 15 I actually think all the money in there is mine, right? That's what

Speaker 15 the serving beyond two terms would actually be. It would be just an objective lie that he would be trying to get

Speaker 15 the country to go along with. And I think I would be more

Speaker 15 open

Speaker 15 to this claim around the 14th Amendment if there was some kind of structure in which

Speaker 15 there was a law, he had violated the law, that was either somehow ratified by Congress or by the legal system.

Speaker 15 There was something you could point to and say, that is the proof that Donald Trump committed what we are all collectively calling insurrection or aiding and abetting insurrection, and therefore he is not eligible.

Speaker 15 Other, you know, court, you know, even political

Speaker 15 actors in states could choose to ignore that, right? That's something that could potentially happen.

Speaker 15 But if a Democrat Democrat or a nonpartisan official or even a Republican decided to say he was ineligible, there would be kind of a basis for looking at that claim in the way, in a kind of fair-minded way.

Speaker 15 But we don't have that. Now, the response that I've heard, which I think is a fair response, like I'm being critical of what the Constitution should say, but that's not what it does say, right?

Speaker 15 Maybe that would be a better system, but these lawyers are looking at what the Constitution says and saying this bars him from office.

Speaker 15 But then if we're going to start getting technical about the text, if this was meant to be applied to the president, presumably the text would say the word president.

Speaker 15 It wouldn't have just skipped over. It wouldn't go from members of Congress and then worked its way down to

Speaker 15 government officials. And then, oh, by the way,

Speaker 15 that includes the president. We didn't feel the need to mention the most powerful figure in our system of government.
But once you take this in a couple hundred years, you go run with it.

Speaker 15 You can apply it to the president. We just forgot to include that name.
Like, if we're going to get technical, presumably

Speaker 15 that's a problem, isn't it?

Speaker 16 Well, I think that's right, but the text, of course, is not the only thing that matters.

Speaker 16 And I do think that all of the historians who have really, really grappled with the kind of drafting of the 14th Amendment say it's really not a close question that the drafters did intend to disqualify from the very highest office in the country,

Speaker 16 individuals who had engaged in insurrection. So I think that, but I hear you on, it is there are more contestable arguments arguments within the 14th Amendment than the 22nd.
That's right.

Speaker 16 The two terms is much more straightforward, but it does seem as though when you immerse yourself in the evidence, both drafting and history, and kind of practical considerations, it's not a complete, you know, it's not a case that is as clear, I don't think, as the immunity case, but I think it is a case in which there is a clearly correct answer.

Speaker 16 And so then we're talking about degrees of difference as opposed to difference in kind from a two-term limitation scenario.

Speaker 15 and you don't, and even though this is ultimately almost certainly going to result in the Supreme Court deciding, whether in a narrow way or in a broad way, that this clause doesn't apply in this situation and Trump must be allowed to be on the ballot, you believe it is still worth pursuing this argument, even if it might lead to a new kind of culture.

Speaker 15 in which people are trying to find ways to disqualify their opponents from the ballot, often for subjective and inappropriate reasons.

Speaker 16 Aaron Ross Powell, I mean, I was not an enthusiast about pursuing the strategy, but we are here now.

Speaker 16 And I mean, I think that the concern you raise is one that people raise with the Trump impeachments, too, that we would all of a sudden be in an age of impeachment in which any time

Speaker 16 a party controlled the House, we would all of a sudden see rampant impeachments of members of the other party.

Speaker 16 Obviously, we are just the morning after an attempt to impeach Homeland Security Secretary Mayorkis. We may see another attempt.

Speaker 16 So maybe that all was true and it just took a couple of years to really take hold.

Speaker 16 And I guess I there, I still thought it was worth pursuing actually both Trump impeachments in particular, though, the second one.

Speaker 16 And so because we just don't know what is going to be set in motion, and it also just feels like we are in such kind of maximalist partisan warfare in an asymmetrical way, right?

Speaker 16 More, I think, one of our major political coalitions has decided to just pursue completely maximalist goals.

Speaker 16 But I think we're there, and I think we are in this 14th Amendment debate, and we can't avoid it. And I, again, shared the trepidation for a while.

Speaker 16 And yet now that we are here, I think that it's actually really important to continue to publicly press the argument that the Supreme Court should disqualify him if it takes seriously its role and obligations here.

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Speaker 15 So, given how persuasive this is,

Speaker 15 what do you expect in oral arguments to be the ways in which the conservative justices question this?

Speaker 15 And if you were betting on what kind of arguments they'd make to prevent Donald Trump from being kept from the ballot, what would those look like?

Speaker 16 I mean, one, I think, is the, you know, the officer language, I think, in terms of what they might, how they might rule in favor of Trump.

Speaker 16 So the president is not an officer, and so that's kind of a narrow textual basis on which to rule for Trump. There's also something else you alluded to, this idea of self-execution.

Speaker 16 There's some support in the limited case law on this provision for that idea that this is in the Constitution, but it doesn't actually have force until Congress passes a law actually making, you know, real the general prohibition in the Constitution.

Speaker 16 That, I think, is really hard because there's a separate provision in Section 3 that gives Congress the power to remove the disqualification if it votes by two-thirds to let somebody who would otherwise be ineligible serve in office.

Speaker 16 And that, I think, means that the baseline assumption is that they're ineligible if they engaged in insurrection.

Speaker 15 And Congress presumably doesn't have to pass it, doesn't have, Congress has not passed a law that says you have to be 35 because it says it right there in the Constitution.

Speaker 16 It's been there. Yeah, exactly.
So lots of provisions of the Constitution are what are known as self-executing. So the question is, is this self-executing?

Speaker 16 And, you know, I also think it's possible they may say that the process used in Colorado to decide that he engaged in insurrection was just an insufficient process. I actually think that's not right.

Speaker 16 There was a lot of testimony and evidence.

Speaker 16 There were pretty careful findings in the trial court.

Speaker 16 And, you know, there's nothing in the Constitution that says, or the 14th Amendment or anywhere else that says you have to be convicted in a court of insurrection or charged with insurrection or that there's any specific procedures that need to be followed.

Speaker 16 And here, I think Colorado is sort of trying to figure out what to do in a kind of meaningful and robust way. And I think did devise a process that was pretty thorough.

Speaker 16 But that, too, I think is a basis on which the court might say this isn't enough.

Speaker 16 They might not say what would be enough, but they might say this isn't enough, which might leave the door open to another state, Colorado even, or another state trying to to use a more

Speaker 16 extensive process to determine that he engaged in insurrection and then also try to disqualify him. So that leaves the door open, I think, to other efforts.

Speaker 16 The other two, I think, pretty decisively shut the door. So those, I think, are probably the three most likely candidates.

Speaker 15 Would there be some way the Supreme Court could rule on this case that makes it so other states and other

Speaker 15 secretaries of state can't remove Trump from the ballot and force the court to rule again?

Speaker 16 So they can't do it. So force the court to rule again.
I mean, they would have to have, somebody else would have to try to get the court to rule again, right?

Speaker 15 Right. So basically, so they, but I'm saying this ruling, even if they did it, if they do a narrow ruling, there would be nothing to prevent, say, another official from trying another path.

Speaker 15 And they'd have to just quickly smack that down.

Speaker 16 Aaron Ross Powell, it would depend on what, yeah, on what narrow ruling.

Speaker 16 But it is possible that they might do something that says this isn't good enough, like the process, but yes, another state could try.

Speaker 16 And in some ways, that's kind of the worst of all possible worlds because we're going to be in this sort of limbo and uncertainty of the sort you alluded to with the kind of the sort of earlier disqualification argument

Speaker 16 until, I don't know, the election potentially.

Speaker 16 I mean, one other possible kind of narrow or like an avoidance route would be to decide that because we're talking about a primary here, the court is not gonna rule because actually he's not being taken off the ballot at all in the general election sense.

Speaker 16 And so somebody has to come back with a similar argument. you know, before the general election and then the court can decide.

Speaker 16 I mean, an even further kind of kick the can down the road approach would be to say, well, you know, either we'll rule when we have it when we're in the general election phase, or this is actually something for Congress to decide when it actually gathers to count the electoral votes, whether he's disqualified.

Speaker 16 And so we'll kind of leave this kind of protracted moment of uncertainty

Speaker 16 until the actual counting the votes, which obviously will happen once there is a new Congress.

Speaker 16 And that seems like a recipe for something that would make January 6th, 2021 look like extremely small time

Speaker 16 activity. And so I think that there's, I think that those are the possibilities and none of them are attractive possibilities.

Speaker 15 And I just want to also say for the record, if the Supreme Court decides that Trump can't be on the ballot, I support it completely.

Speaker 15 I don't want, I'm in, you know, I'm in.

Speaker 16 And I think we should talk, I think that a lot of the debate and the discourse has assumed, and I think kind of everyone protecting their hopes and expectations probably, that obviously this is a foregone conclusion.

Speaker 16 And that's still most likely right.

Speaker 16 But I just think that a lot of people who are very on the fence, I think across the spectrum, as they really grapple with the arguments, find this to be a case that is much harder for Trump to prevail in.

Speaker 16 And, you know, I think a couple of the justices are never going to be gettable on this. I can't imagine Thomas and Alito keeping a genuinely open mind.

Speaker 16 I'm not sure about Gorsuch, but I do think that this is a case where there is at least some sliver of uncertainty about how some of the justices, you know, John Roberts and Brett Kavanaugh and maybe Coney Barrett, maybe, might rule.

Speaker 16 And so I think there's a, you know, there's a way in which we, you know, we're not willing it into being. They're not actually listening.

Speaker 16 But I think that from the public's perspective, you know, I think that if we sort of say it's a foregone conclusion, I think people, the worry is people check out.

Speaker 16 And I don't think it's a totally foregone conclusion.

Speaker 15 Aaron Powell, yeah, I do, just like my non-legal objection to all of this and concern about all of this is so much of what I think the anti-democratic fervor on the right has

Speaker 15 led to is a kind of going to the rules and looking for

Speaker 15 new and previously undiscovered loopholes. Oh, Mike Pence can actually decide who the president is.
Actually, state legislatures reign supreme technically. And

Speaker 15 those kinds of

Speaker 15 that way of thinking about what the law is and what the Constitution means is really dangerous. It's really dangerous

Speaker 15 to have everybody going to comb the records for a justifiable argument for not having to face their opponents or not having to face defeat.

Speaker 16 It feels like the left is doing that here. That's your concern.

Speaker 15 Yes, it does.

Speaker 15 It is what the left is doing here.

Speaker 15 Well, it may be justified, but we discovered a new ⁇ we discovered a way to remove Trump from the ballot based on a constitutional amendment clearly designed to target insurrectionists.

Speaker 16 Insurrectionists growing out of a particular moment with broader application, like so many provisions in the Constitution. And it's not just the law review article, right?

Speaker 16 Like right after January 6th, there were people in kind of pockets of academia who were talking immediately about Section 3 of the 14th Amendment disqualifying him from a future run, even when it still looked like he was going to be impeached like right away.

Speaker 16 So

Speaker 16 it is something that is not, I don't think, I think it's an uncharitable description to suggest we are literally just looking for any opportunistic argument. And yet we share the concern.

Speaker 16 But of course, the alternative is, well, we let democracy flower and we have a candidate who has demonstrated unwillingness to participate in genuine democratic competition.

Speaker 16 And so I'm not sure just letting democracy run the show

Speaker 16 and rejecting legalistic arguments is going to get us there either. You know, I guess there are no good routes, is the answer, but this is where we are.

Speaker 16 And I think that the best reading of this provision of the Constitution, and one that the court should actually try to grapple with seriously, is that he's disqualified.

Speaker 15 One last question. You interviewed Eugene Carroll and her lawyer, Robbie Kaplan, after their big win in the defamation suit.

Speaker 15 Is there anything you learned from that discussion about Trump and his legal strategy in general?

Speaker 16 It was a really fun conversation.

Speaker 16 I do think that hearing them talk about Trump in court was pretty illuminating. I wasn't at the trial.
A lot of folks did kind of dip in and out.

Speaker 16 But it did feel like he sort of lost control, and the loss of control made him further lose control.

Speaker 16 And I don't know what exactly that tells us about all of the many other

Speaker 16 sites of legal jeopardy that Trump is in at the moment.

Speaker 16 But it does seem as though when there's the prospect coming into view of genuine accountability, he takes actions in ways that are wildly counterproductive to his own interests, right, like legal and otherwise.

Speaker 16 And so it made me think that, you know, that things could get pretty explosive in some of these cases if, for example, the DC case goes to trial.

Speaker 16 You know, he was only a civil defendant in the Eugene Carroll case and still, I think, kind of walked up the line, as Robbie suggested, of conduct that would have gotten himself, you know, maybe hauled into custody if he were anyone but a former president.

Speaker 16 And so

Speaker 16 I don't exactly know what to expect, but it does seem to me that

Speaker 16 really unpredictable conduct is likely to ensue if some of these legal cases actually look like they are going to result in genuine accountability.

Speaker 16 And so that's what we have in store, I suspect, for the next, you know, nine months.

Speaker 15 Kate Shaw, thank you. Thank you for indulging me in a conversation about the law when I only have really just a great LSAT score to my name.

Speaker 16 Probably better than mine, John.

Speaker 16 But I enjoyed it. Thanks for having me.

Speaker 15 This coming Tuesday, there's a special election to fill queer icon George Santos' vacant seat in New York.

Speaker 15 Here to chat with us about this race and about what Vote Save America is going to help you do over the course of this election. It's Vote Save America's Fearless Leader.
It's Janiqua McLennan.

Speaker 18 Hi, John.

Speaker 15 Janiqua, why are we watching what's happening? in my childhood district, New York's third.

Speaker 18 Wow, I did not know that was your childhood district, but we are watching because

Speaker 18 it's a vacant seat right now because George Santos got kicked out of Congress. But

Speaker 16 the margins in Congress are pretty small.

Speaker 18 And so every additional Democrat we can get in matters. And it's something that people can start doing now.
You know, one of our big goals for this year is for to help Democrats take back the House.

Speaker 18 And this is like one step toward doing that. And yeah, it matters.
And there's ways that people can get involved right now.

Speaker 15 Now, this seat is in a closely divided district. That's how George Santos was able to win in the first place.
Republicans are trying to use immigration as a wedge issue in the district.

Speaker 15 Democrats are hoping for a pickup. What can people do at Vote Save America in this one race right now?

Speaker 18 Yeah, you can actually volunteer. If you go to votesaveamerica.com slash volunteer, we have volunteer opportunities up for this district right now.

Speaker 18 And the election's on Tuesday. So pretty much this weekend is going to be really important for people to knock doors, make phone calls, and just make sure people know the election is happening.

Speaker 18 Turnout wasn't what it needed to be when this election actually happened in November in 2022. So people just knowing that it's happening, that it's close will make the difference.

Speaker 18 And hopefully getting another Democrat in Congress.

Speaker 15 Yeah, a bunch of things went wrong, I would say, that allowed George Santos to be elected a member of Congress. So

Speaker 15 a little bit of research might have been, yeah, might have been helpful. So Vote Save America.

Speaker 15 Now, listen, don't be sad because it's over. Smile because it happened.
Vote Save America launched a new action finder.

Speaker 15 What should our listeners know about it? It's great.

Speaker 18 Honestly, we have thought a lot about.

Speaker 15 Yeah, no, it is great. It is great.

Speaker 18 We've thought a lot about people coming to the site and what experience they have when they get to the site. And so the Action Finder is an easy way if you want to do something,

Speaker 18 but, you know, maybe you want to stay at home and do something, or maybe you're willing to go outside and knock doors.

Speaker 18 Maybe you live in a place where there's not a lot of opportunity or a lot happening right now, or you live in a place like Arizona where there's a ton, or in New York, where there's a ton happening now, you can go on, check a few boxes to say how you're interested in getting involved, how much you're willing to do, where you want to do it, and then we will serve you the best options that come up for you to do that.

Speaker 15 So, yeah, like just, we, and Shaniqua has led this team to figure this out.

Speaker 15 Like at Votave America at Crooked, we're trying to figure out in a moment where you are overwhelmed with requests for fundraising, for volunteering, when the news can be bleak or confusing, where you're not sure exactly where you can plug in.

Speaker 15 And maybe a lot of people in your life aren't exactly excited to engage, or at least aren't yet amped the way we're going to need them to be amped.

Speaker 15 Vote Save America, if you go and you sign up, we're trying to make it easy for you. So you can just go, sign up, and we will show you ways you can help.

Speaker 15 We will make sure that if you donate, those dollars are going to the places that make the biggest difference. Can you talk a little bit about one way we're doing that on the donation front?

Speaker 18 Yes.

Speaker 18 So we also launched our new anxiety relief program which i know is very important to love it you actually it was very helpful all the feedback you gave us i just want everyone to know you you you all are involved it's not just like you know you host the shows you're involved in the stuff that we're doing and we appreciate it okay um

Speaker 18 but we launched the program pretty much um we wanted to take a lot of the guesswork and anxiety out of donating so the way it works is you set up a recurring monthly donation at whatever amount feels good for you and then we send a hundred of that donation to grassroots organizations and down ballot races, often the organizations and races that aren't as sexy to people and they don't pay a ton of attention to, but are really important.

Speaker 18 And then at the end of each month, we are going to send an email out to anyone who's part of that program to let you know where your money went and what it's being used for by those organizations or candidates.

Speaker 18 And it's, you know, it's an important thing. for the organizations and candidates as well.
So often so much money comes in at the last minute.

Speaker 18 It comes comes in around September when people start paying attention, but it's really hard to make decisions with money that doesn't come in until right before the election.

Speaker 18 So we're hoping to make things easier for the organizations we work with and some of those down ballot candidates so that they can plan out their work for the whole year.

Speaker 18 And, you know, across the board, I'm sure people have heard about progressive fundraising being down.

Speaker 18 And so this is another way we can just create a little bit of a cushion and certainty for the organizations that we work with.

Speaker 15 Now, there's some, you have some, you have, you have some news.

Speaker 18 Yes, some breaking news. You heard it here first on Pod Save America.
We're really excited.

Speaker 18 We launched the anxiety relief program last week, and we're already over 27,000 in monthly recurring donations from 600 donors who are really grateful to any additional that people can add to that will help us help more organizations.

Speaker 18 So, the more money we have coming in each month, the more organizations we can make sure have the resources they need to turn out voters.

Speaker 18 And I mean, we've seen donations as small as $2 a month, all the way up to $1,000 a month. So, literally, whatever you can give is greatly appreciated.

Speaker 18 And on our Action Finder, 3,400 people have already used that tool to find something to do. So, we hope you all will join them.

Speaker 15 And, you know, honestly, those are good numbers. They're not good enough.
There's a lot of people listening to this show.

Speaker 15 And here's the thing: if you're listening to this, man, you're really paying attention. And what's it all for? All right, just to, you know, just so you can know things.

Speaker 15 That's not enough. So, anyway, we're asking everybody, you gotta, we're just asking everybody: 2024 is here.

Speaker 15 It's time to put all of your anxiety and energy and enthusiasm into actually having an impact. We all consume the news, we are all stressed out about what could happen, we all know the stakes.

Speaker 15 So, please, please, please, now is the time to sign up at votesaveamerica.com and to get your friends and family to sign up to Shaniqua. Thank you as always.
Votesaveamerica.com.

Speaker 18 Thanks, John.

Speaker 15 All right, that is our show for today. Thank you so much to Daniella Diaz, John Ralston, Kate Shaw, and Shaniqua.
We'll be back on Friday with another episode with Dan and John.

Speaker 15 If you want to get ad-free episodes, exclusive content, and more, consider joining our Friends of the Pod subscription community at crooked.com/slash friends.

Speaker 15 And if you're already doom scrolling, don't forget to follow us at Pod Save America on Instagram, Twitter, and YouTube for access to full episodes, bonus content, and more.

Speaker 15 Plus, if you're as opinionated as we are, consider dropping us a review. Pod Save America is a crooked media production.
Our show is produced by Olivia Martinez and David Toledo.

Speaker 15 Our associate producers are Saul Rubin and Farah Safari. Kira Waquim is our senior producer.
Reed Sherlin is our executive producer. The show is mixed and edited by Andrew Chadwick.

Speaker 15 Jordan Cantor is our sound engineer with audio support from Kyle Seglu and Charlotte Landis. Writing support by Hallie Kiefer.
Madeline Herringer is our head of news and programming.

Speaker 15 Matt DeGroote is our head of production. Andy Taft is our executive assistant.
Thanks to our digital team, Elijah Cohn, Haley Jones, Mia Kelman, David Toles, Kirill Pelaviv, and Molly Lobel.

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