Liberals feckless, conservatives reckless: Legal expert on SCOTUS Trump ballot ban case

The U.S. Supreme Court heard oral arguments in a historic case Thursday to determine if Republican presidential front-runner Donald Trump is eligible to remain on the ballot for the 2024 election. The justices are reviewing a decision by Colorado’s high court that found Section 3 of the 14th Amendment of the U.S. Constitution makes Trump ineligible to run for office because he engaged in an insurrection on January 6, 2021. The Nation's justice correspondent Elie Mystal responds to the first day of proceedings, saying he was disappointed to hear both liberal and conservative justices casting doubt on the Constitution's application in this case to avoid the political ramifications of keeping Trump from office. “They decided to lock hands and ignore that because it would be too messy for the country to apply the law to Donald Trump,” says Mystal, who also explains Trump’s far-fetched plan to claim immunity from prosecution until after the presidential election, the scandal surrounding Fulton County District Attorney Fani Willis during Trump’s prosecution in Georgia, and writer E. Jean Carroll’s successful defamation suit against the former president.

This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Nermeen Shaikh, joined by Amy Goodman.

The U.S. Supreme Court heard oral arguments in a historic case Thursday to determine if Republican presidential front-runner Donald Trump is eligible to stay on the ballot for the 2024 election. The justices are reviewing a decision by Colorado’s high court that found Section 3 of the 14th Amendment of the Constitution makes Trump ineligible to run for office because he engaged in an insurrection on January 6, 2021. A ruling would come within weeks.

Before a packed courtroom, both liberal and conservative judges expressed skepticism over Colorado’s case. This is liberal Justice Sonia Sotomayor [sic].

JUSTICE ELENA KAGAN: I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified, for insurrection, to be president again is — you know, just say it — it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means.

NERMEEN SHAIKH: Meanwhile, liberal justice Justice Ketanji Brown Jackson appeared to agree with Trump’s lawyer Jonathan Mitchell’s argument that the 14th Amendment’s disqualification provision does not apply to all insurrectionists, but only to people who swore to support the Constitution as an “officer of the United States,” which does not include the president.

JUSTICE KETANJI BROWN JACKSON: The first argument is we have a list of offices —

JONATHAN MITCHELL: Yes.

JUSTICE KETANJI BROWN JACKSON: — that a person is barred from holding, right?

JONATHAN MITCHELL: Yes.

JUSTICE KETANJI BROWN JACKSON: Under your theory or under the language of — and we see it begins with senator, representative, elector of —

JONATHAN MITCHELL: Elector.

JUSTICE KETANJI BROWN JACKSON: — president and vice president, and all other civil or military officers — offices —

JONATHAN MITCHELL: Offices under the United States.

JUSTICE KETANJI BROWN JACKSON: Offices under the United States.

JONATHAN MITCHELL: How it’s phrased.

JUSTICE KETANJI BROWN JACKSON: But the word “president” or “vice president” does not appear specifically —

JONATHAN MITCHELL: That’s right.

JUSTICE KETANJI BROWN JACKSON: — in that list. So, I guess I’m trying to understand: Are you giving up that argument?

JONATHAN MITCHELL: No.

JUSTICE KETANJI BROWN JACKSON: And if so, why?

JONATHAN MITCHELL: No, we’re not giving it up at all. You’re right: The president and the vice president are not specifically listed. But the Anderson litigants claim that they are encompassed within the meaning of the phrase “office under the United States.” And that’s —

JUSTICE KETANJI BROWN JACKSON: And do you agree that the framers would have put such a high and significant and important office, sort of smuggled it in through that catchall phrase?

JONATHAN MITCHELL: No, we don’t agree at all. That’s why we’re still making the argument.

NERMEEN SHAIKH: That’s Trump’s lawyer, Jonathan Mitchell, questioned Thursday by Justice Ketanji Brown Jackson. And this is conservative Justice Brett Kavanaugh challenging Colorado’s attorney, Jason Murray.

JUSTICE BRETT KAVANAUGH: Last question: In trying to figure out what Section 3 means, and kind of to the extent it’s elusive language or vague language, what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide? Because your position has the effect of disenfranchising voters to a significant degree.

JASON MURRAY: This case illustrates the danger of refusing to apply Section 3 as written, because the reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.

NERMEEN SHAIKH: For more on this and other cases Trump is facing, we’re joined by Elie Mystal, The Nation's justice correspondent. His new piece is headlined “The Supreme Court Is Not Going to Save Us from Donald Trump.” He's the author of Allow Me to Retort: A Black Guy’s Guide to the Constitution.

Welcome back to Democracy Now!, Elie. If you could just begin by responding to yesterday’s oral arguments.

ELIE MYSTAL: Yeah, it was a disaster. Apparently, the Constitution does not matter, if it makes Republicans sad. The idea — and it’s so important that you guys, I think, earlier highlighted the Bolsonaro story, right? Because look at what Brazil is doing when their former president threatened their government, right? They took my man’s passport away, right? That’s not what we do here, apparently. We don’t defend ourselves, apparently.

And yesterday’s Supreme Court argument involved nine justices, three appointed by Republican presidents, but — sorry, six appointed by Republican presidents, but three appointed by Democratic presidents, kind of locking arms and deciding to ignore the Constitution, ignore the plain text of Section 3 of the 14th Amendment, which clearly states that insurrectionists cannot run for office. They decided to lock hands and ignore that because it would be too messy for the country to apply the law to Donald Trump. That’s what happened yesterday. And it was very disappointing to listen to.

AMY GOODMAN: I mean, it’s fascinating, Elie, when you look at who Jason Murray is — right? — the lawyer for Colorado that is trying to keep Trump from the ballot as an insurrectionist. He both clerked for Elena Kagan, a liberal justice, and for Neil Gorsuch — right? — the justice from Colorado.

ELIE MYSTAL: Mm-hmm, and both Gorsuch and Kagan lit him up yesterday. Kagan was extremely concerned — the first sound that you played wasn’t Sotomayor; it was actually Kagan. And as you played, Kagan was extremely concerned with the ability of Colorado to, kind of on its own, exclude Trump from the ballot, and the knock-on effect that would have in all the different states.

The best way that I can explain the liberal position or why the liberals took the position that they did is that I would say Kagan, Jackson, Sotomayor, to some extent, they were more concerned with a red state, a Republican legislature or Republican governor kicking somebody like Joe Biden off the presidential ballot for bad-faith reasons, that they were willing to stop Colorado from kicking Trump off the ballot for good-faith reasons. And while I get that calculus as a realpolitik method, it is a problem when your legal decisions, when your legal rulings are based on what you think the bad-faith guys will do with it, right? Like, that’s a problem if the law gets reduced to, like, “Oh my god! What will Ron DeSantis do?” Like, that’s not a good way to run a country. But that is the way that we saw the liberals want to play it yesterday.

And I think the other point, Amy, that’s worth mentioning — you brought up who the lawyer for the Colorado side was. Let’s not forget who the lawyer for the Trump side was, right? Let’s not forget who Jonathan Mitchell is. He is the former Texas solicitor general who is most famous for inventing Texas’s SB 8, the bounty hunter law that allows people to pursue abortion providers in Texas, that effectively overruled Roe v. Wade before the Supreme Court overruled Roe v. Wade. That’s the guy the Trump campaign dragged out to make their argument that he should stay on the ballot. And that’s the guy that apparently all nine justices found a way to agree with yesterday.

AMY GOODMAN: So, I also wanted to ask you about the line of questioning of Justice Ketanji Brown Jackson and the whole issue of what it means to be an officer in the 14th Amendment. And also, talk about the history of this case, why Colorado invoked it, going back to the Civil War, what it means for an insurrectionist to run for office.

ELIE MYSTAL: Yeah, I mean, this is the double-edged sword of Justice Jackson, right? She is fantastic, you know, amazingly smart. And she is a textualist, right? She is an originalist — a liberal version of those words. But she is the person who kind of goes toe to toe with Neil Gorsuch whenever they want to talk about the original public meaning of this or that, right? She is the one who goes right into the Oxford English Dictionary to fight Gorsuch about the definition of what “is” is, right? That’s who she is. And that’s great, most of the time, right?

But yesterday, those same — that intellectual consistency led her to what I think is a quite tortured place, where she was parsing the word “office” versus “offices,” “officer” versus “offices,” to try to find some way to not include President Trump. And problem with that is that it’s ridiculous, right? It is just ridiculous as a matter of common sense to think that the people who said that “You can’t be a senator if you raised a rebellion against the government, and you can’t be a congressperson if you raised a rebellion against the government, but president, yeah, sure, that’s fine. We don’t have a problem with it.” Like, that’s a ridiculous argument. But that’s how — that’s what she talked herself into.

And again, I think she talked herself into that, I think the liberals generally talked themselves into that, because they don’t like the political reality of what the law says. They don’t like the idea of kicking Trump off the ballot. They don’t like what that means kind of as a precedential value around the country. And so they twisted themselves into a pretzel to pretend that the law says something that it doesn’t.

NERMEEN SHAIKH: Well, Elie, I want to ask you about the long-awaited ruling this week on Trump’s claim to be immune from criminal prosecution, which you write about in your piece headlined “The D.C. Circuit Just Shredded Trump’s Immunity Claims.” “The court’s decision should put to rest the question of whether a former president is immune to prosecution. The question is whether the Supreme Court will allow that,” you wrote. So, lay out how this three-judge panel unanimously rejected Trump’s argument, and what could happen next.

ELIE MYSTAL: Yeah, speaking of stupid arguments, the argument that the president of the United States, once he is no longer clothed in power, is free to commit any crime he would like, without fear of prosecution, the idea that if a president of the United States commits crimes while he is in office, he is somehow immune from ever being prosecuted for those crimes, even when he is out of office, that is ridiculous. Nobody reasonable believes that. And the D.C. Circuit panel, the three-judge panel, two judges appointed by Democrats, one by a Republican, unanimously ruled that Trump was wrong on every single level of his argument. It was a total — like, what I called it was a “bench slap.” They destroyed that argument, as well they should. It’s a ridiculous argument.

But does that end the issue? No. Because, remember, folks, Trump is not trying to win with this ridiculous immunity argument. He is trying to delay with this ridiculous immunity argument. He was due to be put on trial by Judge Tanya Chutkan and prosecutor Jack Smith on March 4th. Then he started making this immunity argument. Well, then Judge Chutkan ruled that that immunity argument was wrong, because, again, it is obviously wrong. But now he got to appeal, right? So, that appeal took a month — right? — took a month for the D.C. Circuit to write it. We are now — we’ve moved — Chutkan has already moved back her March 4th trial date, right?

So, what happens next? Well, he’s going to take the D.C. ruling and appeal it to the Supreme Court. Now, again, when he gets to the Supreme Court, if the Supreme Court takes it, he will lose again, because his argument is ridiculous. And I think even after what I heard yesterday, I do not think there are five justices up there who will say that the president is immune from — that a former president is immune from prosecution. That’s just not true, right? So I don’t think they’re going to do it.

But the question is whether or not they grant the case at all and whether or not they allow him to continue to delay the start of his trial while he makes this ridiculous argument. The court doesn’t have to take the case. And if the Supreme Court does want to take the case, it doesn’t have to grant a stay. It doesn’t have to stop Judge Tanya Chutkan from moving forward with her trial. But if there are four or five conservatives willing to allow Trump to delay, willing to allow him to essentially hack the legal process to try to keep himself out of jail long enough to run for president again, then Trump will potentially be able to delay his trial into the summer, through the conventions, maybe even past the next election — which is his whole game, because the idea that he’s actually going to win on this particular argument is never in the cards for him, and he knows it, and anybody rational knows it, as well.

NERMEEN SHAIKH: Well, this week, Donald Trump renewed his request for the judge in his Georgia election interference case to disqualify Fulton County District Attorney Fani Willis and dismiss the indictment, saying her, quote, “egregious misconduct demands” it. Willis has acknowledged she had a romantic relationship with the prosecutor she hired on the case, Nathan Wade. You have a piece for The Nation headlined “The Fani Willis Scandal Is Bad — But It Doesn’t Change Her Case Against Trump.” Explain what you mean, Elie.

ELIE MYSTAL: Yeah, I don’t think Fani Willis should have done what she did, what she allegedly did, what she has admitted to even in some ways. I don’t think that’s a good look. I don’t think she should have done that, right? I think that borders on unethical. But it has nothing to do with her ability to prosecute this case and the charges that she has brought against the 19 co-conspirators who tried to defraud the people of Georgia of their votes, right? It has nothing to — like, her personal, I think, foibles have nothing to do with the prosecution of that case, where, let us not forget, three people have already pleaded guilty to the charges that she brought stop.

So, we have to understand Fani Willis as a person who has professional responsibilities and a personal life. And her personal life, I think that was a mess. But her professional responsibilities are not in any way implicated by this particular scandal. There are different kinds of ethical, moral quandaries and scandals that potentially would implicate a prosecutor’s ability to move forward with a case. This ain’t one of them. This is just a bad look, right? So the idea that you can go from this personal issue and overplay it to the point where “Now you have to dismiss the whole case, and she is racist” and — it’s ridiculous. And I don’t think a judge will go for it. But it’s a bad look. I wish she hadn’t done it.

AMY GOODMAN: And, Elie Mystal, we haven’t talked to you for a while, since the E. Jean Carroll case, which really is significant, a jury voting more than $83 million for Trump defaming E. Jean Carroll, after another civil trial found him guilty of sexually assaulting her, the judge saying, in common parlance, it was rape. But when the — just before the jury found him liable for $83 million, Trump walked out of the closing arguments. Can you just summarize that case for us and where it’s headed? Will he be paying this $83 million?

ELIE MYSTAL: Yeah, Trump is a bit of a baby, and he threw a tantrum when he had to pay up the money for running his mouth. Like, let’s not forget. There was an initial trial. He was found liable for defaming her. He was ordered to pay her $5 million. And then he kept defaming her, and then he kept running his mouth about her, right? And so that’s why he had the second trial, and now it’s an $83 million payment.

And I’ll tell you one thing, Amy: He has shut up about her now. He’s made a lot of tweets, a lot of all-caps anger tweets — haven’t heard her name out of his mouth since the verdict. And that’s the point. We, perhaps, finally found the price point that it takes to make Donald Trump shut up, and it’s $83 million. I hope we all remember that figure. I hope other judges put $83 million fines on him to keep his mouth shut, because, apparently, that’s what it takes.

Will he have to pay it? You know, eventually. I’m not an economist. I don’t understand the GDP of Trump Org and how exactly that works. He has to post a bond. I don’t know if he has the money. I don’t know if he’s going to fleece his, you know, MAGA supporters to send them their Social Security checks so he can pay off his legal fees. I don’t know exactly how it’s going to work, but I do know that the point was that he needed to shut up about her, and he has.

AMY GOODMAN: Finally, you know, we haven’t talked to you since your debut on SNL, or was that Keenan Thompson? Let’s take a look.

BARRY GIBB: [played by Jimmy Fallon] Elie, you write for The Nation. Do you think the media is overstating the negative sentiment of the election to get views and clicks?

ELIE MYSTAL: [played by Keenan Thompson] Well, that’s an interesting question.

BARRY GIBB: Oh, is it? You say it’s interesting. You find it interesting.

ELIE MYSTAL: Yeah, I do.

BARRY GIBB: Yeah? Well, I find you interesting, OK? You look like if Don King ate another Don King. I will unhinge my jaw and bite your head off like a goldfish cracker!

AMY GOODMAN: So, you made it, Elie! You made it! How are you feeling today?

ELIE MYSTAL: I’m obviously a huge fan of Barry Gibb. I feel like he was done wrong by Jimmy Fallon. Look, it was a nice moment for me. And what I’ve taken from that is that whatever the heck I’m doing, it seems to be working, so I should keep working and keep writing and keep trying to explain how our Justice Department and how our Supreme Court is deciding the rules that the rest of us have to live under.

AMY GOODMAN: So, next time we’re going to look at the Supreme Court, do we have to have Keenan Thompson on?

ELIE MYSTAL: Oh, I hope so. If one thing could happen, if that — if I become, in any small way, a way for SNL to cover the Supreme Court a little bit more and to bring some knowledge to bear on its viewers, that, you know, usually aren’t listening to me, about how the court actually operates and what it does in secret, then I will take every Don King joke they can throw at me, if that’s the upshot.

NERMEEN SHAIKH: Elie Mystal, The Nation's justice correspondent, thank you so much for joining us. We'll link to all your pieces. Elie Mystal is also the author of Allow Me to Retort: A Black Guy’s Guide to the Constitution.