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Emergency Podcast! George Conway Explains SCOTUS Ruling in Trump Disqualification Case

March 4, 2024
Notes
Transcript
George Conway explains to Sarah Longwell exactly why the Supreme Court ruled that Donald Trump CAN remain on the ballot in Colorado, and what it means for the future.
This transcript was generated automatically and may contain errors and omissions. Ironically, the transcription service has particular problems with the word “bulwark,” so you may see it mangled as “Bullard,” “Boulart,” or even “bull word.” Enjoy!
  • Speaker 1

    Think the most important thing to take away from this decision is one thing it didn’t want didn’t address, the one thing they were most terrified of, going anywhere near factual funds in the District Court in Denver that Donald Schultz was, in fact, an insurrectionist. And as far as I’m concerned, Donald Trump, just as he’s an adjudicated rapist, remains an adjudicated insurrectionists, even if the Supreme Court has wrongly held that the states do not have the power to enforce section three. Of the fourteenth amendment as against, potential candidates for federal office.
  • Speaker 2
    0:00:46

    Hello, everyone, and welcome to George Conway explains it all to Sarah Longwell. I am Sarah Longwell publisher of the Bulwark, and I am here with George Conway for an emergency episode. Because today we got a decision from the US Supreme Court in Trump versus Anderson overturning the Colorado Supreme Court opinion that had disqualified Trump from the ballot for insurrection under section three of the fourteenth amendment. But before we get to the substance, I need to ask what is a per curium opinion, which is what this is. What does that mean?
  • Speaker 1
    0:01:18

    Well, Percureium is Latin for by the court. And what this is is just it it it appellate a courts occasionally write procurement opinions, where where no individual judge or justice signs the opinion. And that’s all it means is that it’s an opinion that’s not signed by any individual of the court, but it is the opinion of the court.
  • Speaker 2
    0:01:42

    And Meaning all of them.
  • Speaker 1
    0:01:44

    No. It well, all of them all of those who join the opinion, but it is and it is an opinion of the court, and it was joined in its entirety by Well, not quite in its entirety, but by by we’re joined in its entirety about five judges, by justice, five justices, and joined in substantial part by Justice Barrett, and then, joined only as to the result or the the judgment but the bottom line, by Justice’s Kagan, Sotomayor, and, Jackson.
  • Speaker 2
    0:02:19

    Oh, that’s pretty interesting. So everybody came to the same conclusion, but they have different reasons. And so they’re all endorsing the opinion, but not necessarily the It
  • Speaker 1
    0:02:28

    is a it is a, you know, and that’s that that is actually what justice actually the last paragraph of the procuring opinion Ron DeSantis Barrett’s opinion, chose to emphasize is that this is a unanimous holding of the court, reversing the Supreme Court of Colorado.
  • Speaker 2
    0:02:46

    Okay. That is interesting. So today, the court decided, and I’m reading directly from the opinion here. That because the constitution makes Congress rather than the states responsible for enforcing section three against federal office holders and candidates, We reverse. So can you walk walk us through this, man?
  • Speaker 1
    0:03:05

    Look, I mean, this opinion is garden. And It’s not surprising garbage because I don’t think anybody after that argument thought that the Supreme Court was going to affirm in any way. And frankly, having talked to advocates of the fourteenth amendment position, including some very, very serious ones, including people who are involved in the litigation, no one from the very beginning believed that there was it was more likely in than not that plaintiffs would prevail. That being said, I always, you know, when I, when I first started focusing on this, which was when the Colorado Supreme Court decision came down, I thought they’d come up with something better. I mean, I thought the plaintiffs would end up losing one way or the other.
  • Speaker 1
    0:03:57

    But I was surprised that the weakness of the arguments, in favor of Trump, and I thought they’re gonna have to come up with something better. Well, it turns out the court never did. Nobody ever did. I mean, the best argument they ever came up with one that was said to be such a bulletproof argument, you don’t see a trace of it in this opinion, which is the argument that somehow the president is not an officer of the United States. I mean, that That was the number one argument pushed by the Trump lawyers.
  • Speaker 1
    0:04:24

    And you don’t see that anywhere here. I mean, basically, what the court did was it just decided it didn’t wanna play. It didn’t want to address the language of the fourteenth amendment. And it decided to basically, out of a fear, I guess, approbium, but also a fear of conflict among the states, they made up a rule. And the rule that they made up here was that only Congress can provide by statute for the disqualification of a candidate for federal office.
  • Speaker 1
    0:05:06

    And again, they’re just there’s no textual basis for that anywhere in the Tuzhou. And there’s really no historical basis for that, in any anywhere in the in the proceedings that that that that the congressional and other proceedings that accompanied the enactment of the fourteenth amendment It was basically a decision that they made that they didn’t wanna have anything to do with this case. And the rationale that that somehow section this this provision has to be enforced through a statute of Congress is inconsistent with the way that the the court has interpreted the fourteenth amendment generally and consistently over time. And it’s inconsistent with the notion that somehow section three can be enforced by the states only as to some candidates, namely candidates for state office as opposed to candidates for federal office. There’s just no there is simply no coherent rationale to this opinion.
  • Speaker 1
    0:06:10

    And, at that again, that’s just not surprising. I think the the bottom line, I think the most important thing to take away from this decision is the one thing it didn’t touch. The one thing it didn’t want didn’t address The one thing they were most terrified of, which is going anywhere near the factual findings which were made on a very extensive record in the District Court in Denver that Donald Trump was, in fact, an insurrectionist. And that is the most important takeaway, I think, of the day, is that they were absolutely not going to touch that one way or the other And as far as I’m concerned, Donald Trump, just as he’s an adjudicated rapist, remains an adjudicated insurrectionist, even if the Supreme Court has wrongly held that the states do not have the power to enforce section three. Of the fourteenth amendment as against, potential candidates for federal office.
  • Speaker 2
    0:07:17

    And when you say they just didn’t wanna play because this obviously I mean, this jumped out at me too, that the opinion didn’t talk about whether or not Trump engaged in insurrection. And so it didn’t you we had talked when we talked about this before, there was this element of like, will they take up the facts as they are presented or like that they have to take up the facts as presented by the Colorado Court. You might have to correct me on this, if I’m saying it wrong. But the the but it basically, like, they just don’t even when you say they didn’t play. What you mean is they didn’t even talk about this at all.
  • Speaker 2
    0:07:48

    It’s just not in there. They’re not gonna
  • Speaker 1
    0:07:50

    talk about it. They they they were determined to stay absolutely away from anything controversial politically. I think. I think they were terrified for the impact that a decision on the bet that anywhere touched the merits would have on the standing of the court. And I and I and you can see that in Justice Barrett’s concurring opinion where she says.
  • Speaker 1
    0:08:16

    This court, the court has settled a politically charged issue in the ball trial season of a presidential election. In my judgment, this is not a time to amplify disagreement with Stridens. I don’t I don’t know. I mean, why she’s saying that? I think she’s terrified.
  • Speaker 1
    0:08:31

    Well, hold on. Let me let’s talk
  • Speaker 2
    0:08:32

    about Justice I wanna talk about Justice by Barrett’s concurrence, but hers is just a page and she starts by agreeing Right. It’s interesting actually. It’s all the women. So she starts by agreeing with Sotomayor Kagan and Jackson that the court didn’t need to quote address the complicated question whether federal legislation is the exclusive vehicle through which section three
  • Speaker 1
    0:08:54

    can be enforced. So I can’t I cannot make heads or tails out of what Justice Barrett says in the first paragraph of her two paragraph, concurring opinion. If she agrees with the other concurring justices, then she shouldn’t have joined part two b of the court’s opinion because Well, this is the
  • Speaker 2
    0:09:17

    part that you were just reading, right, where she says, okay. So so she goes on to write. And this is this is Tony Barrett. After agreeing with Sotomayor Kagan, Well, so
  • Speaker 1
    0:09:26

    she she, yes, she does it. She does it. She does.
  • Speaker 2
    0:09:28

    And Jackson,
  • Speaker 1
    0:09:29

    She’s saying two inconsistent things here. She’s saying I join part two b of the court’s opinion. Well, part two b of the court’s opinion that she is joining without reservation in that sentence is precisely the part of the opinion that Justice Kagan, Sotomayor, and Jackson took issue with. But, yes, she is saying there that she disagrees with the part of your opinion. She just said she agreed with.
  • Speaker 1
    0:09:53

    So I can’t Well, here’s here’s what she says
  • Speaker 2
    0:09:55

    is what she says why. And it says, in my judgment, this is not the time to amplify disagreement with Stridency. The court has settled a politically charged issue in the volatile season of a presidential election. Particularly in this circumstance, writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity.
  • Speaker 2
    0:10:17

    All nine justices agree on the outcome of this case. That is the message Americans should take home.
  • Speaker 1
    0:10:23

    So that’s all very nice. That’s all very nice. It’s a nice thought, but I don’t understand what she’s doing.
  • Speaker 2
    0:10:30

    I mean, is she saying? It’s, I guess, to
  • Speaker 1
    0:10:33

    your point that you can’t share them. I I can’t figure out I find this opinion completely inscrutable. You know, she’s basically, as you say, Well, first of all, the first sense, she’s disagreeing. She’s agreeing with the majority. Right?
  • Speaker 1
    0:10:53

    I joined part two b of the court’s opinion. Part two b is essentially the essence of the opinion. And then she takes it back. Later in the paragraph that she said she wouldn’t she’s essentially saying she wouldn’t have joined all of to be. And that in that sense, she agrees with the concurring opinions, the concurring opinion of Justice Sotomayor.
  • Speaker 1
    0:11:14

    Then she’s saying, we shouldn’t, she’s sort of taking the concurrence to task, perhaps. I mean, that’s the only way I can interpret it as saying, we shouldn’t be emphasizing our differences here. Even though she agrees with the people she’s she has she she seems to agree. And I cannot
  • Speaker 2
    0:11:34

    But that’s a message to us, isn’t it? So the way I hear that. The way I hear just
  • Speaker 1
    0:11:37

    just read it. I think it’s I think what Justice Bauer wrote here is nonsense and should be different.
  • Speaker 2
    0:11:43

    But but but but the reason I don’t so the or the reason I’m interested in it, I think, is because to me, it’s a political statement She’s making a political statement about the temperature of the country because, she’s saying she’s saying, I don’t wanna get it full. It means when it’s really hot. And it’s like that’s why we’re sitting out. So she’s saying, like, even if I might agree with what they’re saying, I think that the most important thing here is that we all agree that this is not something should be or like, we all agree.
  • Speaker 1
    0:12:08

    No. This this opinion is inscrutable. Okay. Okay. It is inscrutable.
  • Speaker 1
    0:12:14

    It literally contradicts like literally five or six sentences long and it contradicts itself multiple times. So I I’m not going to put a lot of weight Now, with all, with all, you know, and and I have a great deal of respect for Justice Power. I’m I’m not gonna put much weight in this opinion. I don’t I think it’s one of these things that got sort of written at some point when the majority opinion and the dis and the concurring opinions were maybe at different places and they started to move and then She never really changed it to make it consistent with what,
  • Speaker 2
    0:12:46

    happened to the other opinions.
  • Speaker 1
    0:12:46

    I, I do not The only thing that I credit or that I would interpret justice Barrett opinion could demonstrate is that the terror is the terror that the court faced in addressing this case. They’re just terrified case. They were terrified of this case, which is why you have such an incoherent unsigned opinion. That’s not persuasive. But that said, I mean, No.
  • Speaker 1
    0:13:13

    Nobody’s not even the people who were litigating this case, behalf of the Colorado voters, believed the Supreme Court was likely to rule in their favor. They thought they had an outside shot maybe, but none of them ever thought that it was that likely from what I could tell. And and from what I could tell from other people who are advocating the position, you know, against Trump. And but I but I thought they’d do a little bit better than this. And the fact of the matter is they weren’t able to do better than this.
  • Speaker 1
    0:13:45

    And they weren’t able to write an app a convincing opinion because there was no convincing opinion to be had. And Well, can
  • Speaker 2
    0:13:53

    we just
  • Speaker 1
    0:13:53

    I mean, I could go
  • Speaker 2
    0:13:54

    yeah. No. I wanna circle back though to the Yeah. The so the correct because there’s these two concurrences. And I just wanna make this really clear to the audience because this is the part that I think is a little, complicated is that you have Amy Coney Barrett, who’s writing one form of concurrence that’s different from everybody where she’s trying to split the difference.
  • Speaker 2
    0:14:11

    And then you have the concurrences that are specifically, from Sotomayor, Jackson and Kagan. Okay. Can you just talk about because now we’ve referenced it a bunch, but we haven’t quite, Oh, really?
  • Speaker 1
    0:14:24

    Alright. The the Sotomayor concurrence basically says, we agree with the result. Donald Trump should not be knocked off the ballot. But we disagree with all this additional stuff that’s in the procuring opinion about how only Congress can enforce the prohibition against insurrectionists, running for from running or holding federal office, only Congress can do that by statute. We would just
  • Speaker 2
    0:14:54

    leave that issued for another day because it’s not
  • Speaker 1
    0:14:57

    right and not good to decide things that aren’t really necessary to decide the case. And they’re not wrong. That’s a that’s a very that’s actually a very, very conservative view the judicial power, and it’s usually the right view, that you shouldn’t decide more than absolutely necessary to decide a case because there may be arguments that may be brought to you in the future that may clarify something about what you are opining about in the abstract unnecessarily. Today, you may find that somebody may come up with a better argument in the future. So it’s always best to tailor your your opinions and and now.
  • Speaker 1
    0:15:34

    And and and make them as narrow as possible. That being said, the descent that can excuse me. The con the subtle amount of concurrence makes no more sense than the majority opinion. Because there’s basically they just says that, hey, you know, we they the states can’t enforce, the fourteenth amendment in this case, but there’s no basis for concluding that. At least the majority attempted to try to flesh it out a little to make some kind of a consistent theory, a consistent rule about why why it is that that that that the states can’t do that.
  • Speaker 1
    0:16:15

    And they came out with this kind of superstructure about what the federal what federal what federal Congress can do. I don’t think that made any sense. But, you know, I I I just think that Look, I don’t think any of the opinions here make any sense. That’s just just the just the just the I mean, it it they’re terrible. I mean, it’s just bad.
  • Speaker 2
    0:16:37

    And just to be clear, now that this has come out around Colorado, that applies to all the other states may Yeah.
  • Speaker 1
    0:16:45

    No. It’s a very it’s a blanket holding that basically says that the states, no matter what, have no authority to enforce section three of the fourteenth amendment, against candidates for federal office without some kind of a congressional authorization. That’s that’s the bottom line hold. Where that comes from? From the text of the constitutional history, there is no there it doesn’t come from anywhere.
  • Speaker 1
    0:17:12

    It’s just basically a conclusion in search of reasoning.
  • Speaker 2
    0:17:18

    And they don’t try. Right? I mean They don’t
  • Speaker 1
    0:17:19

    they don’t really try. They don’t really try. They don’t really it it’s a it it is It’s a weak and pathetic opinion. Sometimes that’s what you get from courts.
  • Speaker 2
    0:17:27

    Well, I guess I was gonna ask you, this is more a question about you, actually, but, like, you and Judge Ludig and some of my, you know, best legal friends. You guys sort of thought that the court, if they looked at any of the arguments straight up and down that they would have to conclude, in favor of Trump being kept off the ballot under the fourteenth amendment section three. Yeah.
  • Speaker 1
    0:17:47

    I will.
  • Speaker 2
    0:17:47

    And so are you surprised that the court just decided, well, we’re actually just not gonna look at the textual arguments. We’re just
  • Speaker 1
    0:17:53

    gonna know. I’m not I’m not I’m I am not surprised. At particularly after the argument, I just thought they were gonna have to come up with something better. That’s what I’ve always felt, that’s what I’ve always said, And I would never have put money on the plaintiff’s winning this case. I think the problem with the Supreme Court is this, is you know, it has blown its capital and so many other things that it that it couldn’t, you know, it it couldn’t bring itself to do do to, to, to follow the logic in the text of the constitution in this particular case because it was just it doesn’t feel that it has the political capital to enforce a clear provision of the constitution because it has engaged in so many forays, that that you know, it should probably not have engaged it.
  • Speaker 2
    0:18:42

    And then my last question on this is if if their posture to some of these trump cases that are coming in front of them is sort of hands off. Does that give you anything?
  • Speaker 1
    0:18:51

    No. Not at all. Not at all. I mean, the way I look at this is you can’t always get what you want. This is the, you know, my Mick Jag review.
  • Speaker 2
    0:19:00

    Mhmm.
  • Speaker 1
    0:19:00

    And we were never gonna get what we wanted from this opinion. That said, you can get what you need. And what you needed, what what what was necessary here was nothing that overturned or questioned the factual finding of the Colorado Supreme Court. That and and the Colorado District Court that Donald Trump is and engaged in an insurrection. Nobody’s challenging that.
  • Speaker 1
    0:19:28

    Not one word is suggestive of that in the Supreme Court’s opinion. You didn’t hear One word of it really at the argument, suggesting that he was not an insurrectionist. And I think that’s actually the important takeaway because Again, I’ve talked to a lot of people about this case. And I did not find a single person at any point in time saying, I think when the Supreme Court really gets to this and focuses on it. The plaintiffs are gonna win.
  • Speaker 1
    0:19:59

    Nobody said that. Maybe they said, in a perfect world, Maybe maybe you could get lucky. Maybe you could get the but but nobody. Nobody that I know of. Would have put actual money on the Supreme Court to sign in this case, in favor of the plaintiffs.
  • Speaker 1
    0:20:19

    That said, I thought they’d come up with something better than this. And the fact that they didn’t shows basically how wrong the opinion is. That said, I don’t think it it is their their fear of this particular case of taking Donald Trump off the ballot. And of finding him on the basis of a District Court record in Colorado to be an insurrectionist. I don’t see that as a huge victory for Donald Trump precisely because they didn’t touch the factual finding.
  • Speaker 1
    0:20:50

    But I also because, you know, in this immunity case, I don’t think he want, you know, I I I people view what happened last week when the court decided to hear the immunity case. They viewed that as a victory for Donald Trump, and I don’t know, as I said last week, I don’t think it’s a victory. I think they decided they had to say something about that. And I think at the end of the day, may end up hurting Donald Trump because he’s gonna end up quite possibly on trial in October and November. I don’t think the supreme court’s not didn’t do this to do Donald Trump any favors.
  • Speaker 1
    0:21:22

    They didn’t decide this case this way to do Donald Trump any favors. They didn’t decide the prior cases that that he brought up to the Supreme Court where he was already made for special treatment under the wall in the, you know, in the, in the, in the, in the Manhattan VA investigation in those cases that went up to the court in twenty nineteen. And I I took the they’re not they’re not out do him any favors, and they’re not out to do him any favors in the annuity case as well. I mean, that said, I I don’t think I think that basically this The court’s not gonna save us. It whenever it was going to save us.
  • Speaker 1
    0:21:57

    And at the end of the day, it’s not going to prevent justice from prevailing by virtue of the fact that they’re not, they’re not gonna rule in his favor in the immunity case. They’re just not. So that’s where I come out. I mean, I could, I could go on and on about this opinion, but it would be boring.
  • Speaker 2
    0:22:16

    Okay. Well, no. We don’t need
  • Speaker 1
    0:22:19

    to go on and on
  • Speaker 2
    0:22:20

    because you just explained it incredibly clearly and
  • Speaker 1
    0:22:22

    I don’t know. I understand that.
  • Speaker 2
    0:22:24

    Okay. You understand But I thank you, George, for hopping on this emergency podcast, and
  • Speaker 1
    0:22:29

    I won’t thank everybody
  • Speaker 2
    0:22:30

    for listening. This was an emergency. Alright. Forget to hit subscribe. Leave a review on your podcast app.
  • Speaker 2
    0:22:35

    Email us at ask George at the Bulwark dot com, and we will see you later this week for a regular episode. Thanks guys. Thanks George.
  • Speaker 1
    0:22:41

    Bye. Hi.