George Conway Explains How Trump’s “Absolute Immunity” Defense Crumbled in Historic Ruling

Hi, everyone. It’s George Conway, and I’m here by myself. Actually, I’m not By myself. I have Clyde here. The reason why Clyde is here and Sarah is not is because Sarah and I taped the podcast on Monday And on Monday, we hadn’t had a decision yet in the immunity case involving mister Trump that came down the next day.

And so I’m taping this little supplemental insert that our team is going to put into the podcast at an appropriate moment maybe at the beginning. So that you can, get a little courtesy of what happened in that decision that came down after we did the full taping. And the decision was, as you probably have already heard an absolute blockbuster, and it was everything that everyone expected. I mean, I attended the oral argument. I think we may have discussed it on the pot.

And and it was there was no question that Donald Trump was gonna lose his argument, you know, that he could, as president, order seal team sick to go up on Capitol Hill and kill everybody and not be prosecuted for a crime. And that just did not fly. The court unanimously ruled against him And the only issue, really that that led up, leading up to the decision was people were kind of freaked out But how long it was taking in? It’s important to put that in perspective. Most appeals in the federal courts of appeals take much, much longer than the twenty eight days.

That this appeal took, and this was an expedited appeal and you could have expected possibly a decision in the matter of days. I know I did. But twenty eight days is still pretty fast and what we got for that extra time was actually just a a jam of an opinion. I mean, it really is. I’ve read Probably, I don’t know, ten, tens of thousands of of judicial opinions since I entered law school and god helped me nineteen eighty four.

In forty years. And this is one of the best opinions I’ve ever read on any subject anytime any place by any court. And the bottom line holding really is set early in the opinion says for the purpose of this criminal case, Former president Trump has become citizen trump, with all the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as president no longer protects him against this prosecution. And the way they got to that conclusion, And it was basically by dismantling Trump’s arguments. Trump made two, principal arguments in favor of his claim of absolute immunity from criminal prosecution.

One is the argument I just alluded to, which is that the presidency is something that the acts of a president, the discretionary acts of a president are something that cannot be reviewed at all by any other branch. And that is just not true. It’s a gross overstatement And the bottom line as the court sought and and and going through two hundred years of constitutional history is that the president can’t, you know, the president’s Just discretionary acts are ordinarily not reviewable except when they contravene law because the president is supposed to follow the law. The president is supposed to execute, take care to see that the laws are faithfully executed. The president can’t go out and kill somebody.

Murder somebody can’t go out and steal money from the treasury. Can’t go out and take a bribe, even for signing an act, signing a bill into law, which would be a which would be a presidential official act. So that that that dispose of the first major contention. The second major contention is based was based upon the civil liability structure that has been developed over time with the president’s with with presidential immunity. And essentially what that holds is in its it it it was a case called Nick City against Fitzgerald, where a guy who was on, a senior officer in the air force he got fire from the defense department or something, and it was, he he viewed it as some kind of retaliation by Nixon, I think.

And, and so that he sued president Nixon in Nixon’s personal capacity after Nixon had gone off to exile in San Clementy, California. And But Court basically said that, well, we can’t have the law of the president subject to lawsuits from any just any private plane of anytime anywhere because everybody is affected by what the president does one way or the other and If we started imposing civil liability for what the president does or does not do, we’d end up tying up the president in litigation and litigate, and the president be spending his time sitting around thinking about, well, if I do this, I’m gonna get sued. Maybe I shouldn’t do that even if it were in the national interest to do that. And what Trump does is he tries to leverage off of those cases by saying that all the same thing would happen here. If you prosecute me, then there’s no boundary to what could happen next.

Somebody’s gonna prosecute some some other president could prosecute president Obama for, for a drone strike that killed Americans in some foreign country. So, the answer to the hat parchment, it was was pretty neatly taken care of by the court of appeals. The first answer was, we haven’t seen that. You’re number forty five and we’re you’re number one. You’re the only person this has happened to.

So there really isn’t that doesn’t seem like there’s this big risk of of flood gates. Opening where with with all these criminal prosecutions, Trump’s lawyers actually conceded that presidents could be prosecuted if the president was impeached and removed from Office first, so they were forced to make that concession because that’s actually what a provision of the Constitution called the impeachment judgment clause said, says, which says that if somebody’s impeached and removed from office, that doesn’t prevent them from being criminally prosecuted and there’s no exclusion for the president. And so what the court said was, uh-huh, you’ve made that concession, and we still have never seen a criminal prosecution of a former president until today. And then came my favorite line in the opinion, which was the, there was a quotation of the District Court from the district court’s opinion that said, every president will face difficult decisions, whether to intentionally commit a federal crime, should not be one of them and touché. I mean, that’s that’s just basically it.

I mean, but the idea that that somehow this is going to create a major problem in the future when we only had one president who’s ever done this before, committed crimes to stay in office is just absurd. And indeed, That was the ultimate conclusion reach bot, the Court of Appeals. It the Court of Appeals looked to the Civil Immunity case law and said what we have to do is functionally balance the interests of the presidency in not having been tied up in litigation or whatever the fear is as articulated by the former president Trump here against the national interest. And then the court said, we take took it one step further and did so in a manner that really, really, I think makes the the decision bulletproof from the from the standpoint of further appeal to the Supreme Court. They said We’re gonna just look at the case in the terms of what we have in front of us.

We’re gonna narrowly look at this case and perform the balancing that the that the immunity case law talks about in terms of this particular case. And in this particular case, it’s not just The, the general interest in enforcing the criminal laws that is at stake. This is about the laws that we have in the constitutional provisions and the laws that we have that require the president to surrender power after forty years. And if somebody commits a crime, like the president commits a crime to try to stay in office, I mean, that literally, if he don’t allow the prosecution of that, There are no checks on the president because the president can just declare himself, dictator for life, or You know, you’re not not just one day as Trump seems to wanna do. I would encourage everyone to read it, but if you don’t read it, I’ve written a nice summary.

I think it’s on basically. Of it in the Atlantic, and you can, right now, it’s it’s on top of the homepage. So you can click on it there. And the opinion I have to say is just so good and so strong. I I I really believe that there’s a decent chance the Supreme Court might not might might skip reviewing it because I don’t think any court’s gonna write a better and clearer and and more on the money opinion than this.

And if I were the Supreme Court, I’d think to myself, we’re not gonna add anything to this other than the delay. We can still review, Trump’s intentions after a trial after he’s convicted. If he’s convicted, and the Supreme Court’s busy with other stuff, which we talked about. In the podcast, the main podcast that this is going to be part of. Alright.

I hope you enjoy the rest of our podcast.

Even though we’ve talked about this fourteenth amendment, I don’t know that people quite have their heads around. What a big deal. This is gonna be. Either way this thing goes, it is gonna be a lot of people are gonna be upset about it. It’s gonna have enormous ramifications for the fall.

And and It is

a big deal.

On a scale of I don’t know, legal things that you’ve watched happen before. How big a deal is it?

This is up there. I mean, this is this is a this is a ten. There’s no question. This is a ten. Okay.

We haven’t seen in in the in the election context, we haven’t seen anything this important since, since bush made war, and that was a ten. This is this is one of the most important cases, they will ever decide. There’s no question about that.

Hello, everyone, and welcome to George Conway explains it all. I’m Sarah Longwell, publisher of the Bulwark, and I am here with my good friend George Conway from the society for the rule of law and he is going to explain legal stuff to me. So For those of you who don’t know me, I’m a I’m the publisher of the Bulwark. I’ve got something called the Focus Secret Podcast where we listen to voters. From across the political spectrum, talk about different issues, and I have increasingly realized how much legal news is going to dominate this year’s election conversation.

Because I’m not a lawyer, I wanted George to help understand the ins and outs of the trump cases and I thought other folks would too. And I gotta say we are blown away by the amount of positive feedback and support we’ve gotten for this new show. If you haven’t yet, please go to your podcast app and give us a five star review send us questions at ask George at the Bulwark dot com. We love hearing from you. And George, I don’t know if you noticed we’re number two.

We’re number two. We’re the we’re the number two podcast in, sort of BlueJeans.

We did better than we did better than Dean Phillips in the South Carolina prime.

Yeah. That’s true. Oh, man. Deep cut. On fourteen.

Oh. Fourteen. Alright. Down to business. So this week, we’re gonna preview the oral arguments in trump v Anderson at the Supreme Court, which is happening on Thursday.

This is the case about whether Trump is disqualified from being president under Section three of the fourteenth amendment. So I wanna start with some of the basics about oral arguments. Before cases argued, both sides, they submit their arguments in written briefs. I had another lawyer explain this to me. Like, what’s the point of the oral argument if both sides already have all the arguments in writing that they’re gonna make?

Because one of the things that happens sometimes with briefs is that they kind of talk past each other and the brief sometimes avoid the hard questions that you know, if I’m writing a brief, I kinda write around the the tough point sometimes that I’m that that that that could hurt me. And so It’s a chance for the judges to basically drill down and say, okay, what’s your real answer to this question? This tough issue? And to you know clarify things that might not be clear from the brief because sometimes you don’t wanna be you’re writing a brief, sometimes you’re not as as, yeah, precise as you might be because you don’t want to be quite pinned down. Argument is about trying to pin the lawyers down and trying to understand their arguments and focusing the lawyers on the things that you as a judge think matter as opposed to all the other things that the that the lawyers may be putting in their briefs.

And this argument is going to be particularly important because of the way this case has gone through the courts. Normally, when a case gets to the Supreme Court, there’s just one or two very narrowly focused issues that the court is legal issues that the court is going to address This course, this case came up so fast that they really didn’t narrow the issues down neither the lawyers nor the court. And I’ve written about that. And what the what what in fact Trump’s people did when they filed a petition for certiorari is they didn’t identify which is what you normally do The legal issues that you want the court to focus on, they simply said the question presented to the court is Did the talk did the Colorado Supreme Court get this right? And that’s just not the way you normally litigate these cases, but the Supreme Court took the case anyway.

Because it’s you know obviously very important and has to be resolved quickly.

Now you have argued in front of the Supreme Court. Correct?

Yes, once. Thank you, Mr. Chief Justice and may have pleased the court. The judgment of the court of appeals should be affirmed for two reasons. First, petitioners have identified nothing in the text of section ten b that overcomes the presumption against extraterritoriality or the charming Betsy rule.

What’s it like? States, because in my head, I have I don’t know what it looks like inside the Supreme Court, but in my head, they’re up very high, and they’re in robes, and like little people are down below. Arguing in front of the mighty justices. Is that what it’s like?

Sort of, except the thing that struck me from arguing that that day in March of twenty twenty ten was how close I was to them. I mean, this is a huge majestic courtroom with I don’t know how high the ceilings are, but they gotta be forty foot ceilings at least. And I was closer to the justices standing at the podium. Then I was in a lot of other courtrooms in my lifetime, even, you know, district court courtrooms or state court courtrooms. I was closer to the justices at that podium than in a lot of smaller courtrooms.

And it was kind of funny when you sit there, there’s a there’s a podium. You’re looking right up at the chief justice. He’s you you could, you know, if you held a yardstick and you pointed it up at him, he could probably take it from you.

Like you could poop is no poop them on the nose.

It’s just very close. And in fact, when I was I was sitting next to the podium, which is where council sits when they’re not arguing, and I remember thinking when was writing notes to myself or to my to my colleagues that, you know, I thought Justice Scalia could lean over and look and see what I was writing if I wrote it too big. I mean, that’s how close you are in this large courtroom and what’s amazing about it is You end up in a conversation with these people. No. I mean, it was it’s like you’re you’re talking to these people and they’re talking back to you and it’s like a cozy little conversation, even though there are nine of them.

And I I will never get over that feeling of how intimate felt even though the courtroom is so large and majestic.

Were you nervous?

I was nervous until I mean, what you do is you get out your first what you’re supposed to do when you argue and this is even after COVID. They change kind of the way they do arguments after during COVID but what you’ve always had to do is you have kind of an introductory paragraph that gets you through the first thirty sec thirty to ninety seconds. And it’s basically what you’re supposed to do. At least this is what the SG’s office teaches its people and this is what anybody who writes a book about Supreme Court appellate Abvinsky tells you to do is you say you say something like essentially The judgment of the of the court of appeal should be affirmed for the following three reasons or reversed for the it was wrong for the following three reasons. And you go through one, two, three.

So that you basically in that first initial paragraph that you’re, you know, people read that you could read that paragraph. You can’t read much else. You’re basically laying out what you wanna talk about. And once you get that out, I felt, you know, it was nervous when I was getting that out. But after that, when the question started, I didn’t feel nervous at all because it was I had prepared so much.

I had I had I had prepared so much and it was once I got immersed into the substance and to the back and forth, it was really like a conversation. That didn’t mean I didn’t talk too fast because I was a little hyped up. I certainly did, but I normally talk pretty fast. So it it, you know, it the I felt that the the the nervousness went away. I also had an advantage in my in my case, which I I kinda wrote about actually when I wrote about or about this section fourteen case a few weeks ago in the Atlantic and When I argued my case, I knew I was gonna win because there was this moment.

Actually, no, I wrote this about the DC circuit case. I I knew I was gonna win because I had Justice Ginsburg busting the chops of my adversary. He went up first. So I kinda knew like, okay. I’ve got got six or seven justices at a minimum, and that that helped me.

That’s not gonna help anybody here because I don’t think anybody knows exactly how these people are gonna come out this

Well, just we already talked about this case. We did a whole episode. I think it was our second episode. Go back. Listen to it if you want a refresher.

But just can you give a quick broad overview as we get into the substance here about what it is that the Supreme Court’s gonna be hearing during the oral arguments?

Right. Okay. So the argument, the issue here is what the effect of section three of the fourteenth amendment is on Trump’s ability to hold office and therefore to appeal up to appear on the ballot of, you know, of of any state for either primary election purposes or general election purposes. And what section three of the fourteenth amendment provides is that if you have previously taken an oath to support the constitution as an officer of the United States. And then you go and you you violate that oath by engaging in insurrection against the United States, or you give aid and comfort to the enemies of the constitution of the United States.

You are verified to disqualify from holding any future office. And so the question is, does that apply to Donald Trump? What did he do? Was that the the district court found that, yes, Donald Trump had engaged in an insurrection, but the district court the State District Court went off on this very spruy holding that well, but he’s not an officer that’s referred to under section three of the fourteenth amendment. And then the court of appeal, not the court of appeals, the Supreme Court of Colorado said, uh-uh, he is an officer to whom fourteenth, the fourteenth of Amendment Section three applies and threw him off the ballot.

And the case comes to the Supreme Court, the principal issues that have been raised are, first of all, that officer issue, which I can get into. Another issue that has moved up more prominently because Trump’s Trump didn’t press it as much below, but he’s pressing it much more. Or at least he didn’t press it in his cert petition to the Supreme Court, but he’s press impressed it more in his merits brief to the Supreme Court is that whether Donald Trump engaged in an insurrection, they’re also arguing that it’s not an insurrection, what happened on January six, but that’s just completely ridiculous. And then the other issue that really it comes to the fore is whether or not there has to be some kind of a procedure that Congress enacts to determine whether or not section three of the fourteenth amendment is triggered. And the argument is that unless without such a procedure, you can’t have fairness and so, therefore, Section fourteen.

I mean, the the fourteenth of section three isn’t can’t really be enforced unless Congress provides for a procedure. Well, right now, I mean, all of those arguments that Trump has aren’t very good. And I’m not saying I wouldn’t say, like, take all your chips and put them on, an affermace here because this is a very difficult case prudentially and politically for the court. To to say that the leading candidate for the Republican, one of the major party nominations is disqualified from office and therefore should not be the States could throw them throw him off the ballot is is is an incredible step and it’s nothing Nothing that we’ve ever seen before and it gives a lot of people just as a practical matter and as a prudential manner and as a political matter gives them pause. And it’s not just it’s not just people on the right who support Trump, but it’s also people on the left who oppose Trump.

And personally my view of this Early on was I want to see Donald Trump beating at the polls. I don’t like the shortcut. I didn’t politic as a political matter. I didn’t like the idea that somehow he would be given the argument that, oh, this was so unfair. I could have won, but but I I was thrown off the ballot by these these terrible judicial decisions, but then I started really reading after those Colorado Supreme Court decision came down.

I read in particular the dissents and I started reading the briefs and I realized they don’t really The arguments are very, very strong. He should be removed. And that’s going to be the that that’s the tension that you’re going to see at this argument is Is are the justices going to be looking for some kind of an off ramp from what the law seems to, you know, the plain language of the constitutional provision and the history behind it, are they going to try to figure out some kind of an off ramp whether legally or factually or otherwise to avoid this, you know, very difficult conclusion that they have to reach.

And what would an off ramp look like? What’s an example of the

off ramp? No. The the off ramps are the off ramps that the that that that that Trump is trying to Trump’s lawyers are trying to offer the court. One is this officer contention. The contention that Trump is not that that that the president of the United States is not an officer of the United States within the meaning of Section three of the fourteenth Amendment.

The problem with that argument is that the constitution in at least twenty places refers to the presidency as an office. So ergo, if somebody holds an office, they are an officer. And the argument that Trump has been making and the Republicans have been making to that he is that the president is not an officer is really based on what I think are completely inapposite, interpretations of particular clauses in the original constitution such as the appointment clause. And what the appointment clause says is the president, gets to appoint officers of the United States whose selection isn’t otherwise specified by the constitution. And so what they’re saying is, well, if the president gets officers of the United States.

Therefore, he is not an officer, but that doesn’t follow. He could be an officer of the United States whose select the the method where the method of selection is provided for in the Constitution, which in fact it is through the electoral college and in in article two and in and in and in and in and in section in and in the twelfth amendment. So, that and and one of the interesting things that has come to the fore in the last couple of weeks is that there is a separate opinion by Justice Scalia in one of the cases that the Trump people very strongly rely upon. It’s a case involving the NLRB and the appointments and and and the constitutionality of the of the provisions for appointing, members of the NLRB called a case called Noel Canning, and there was a concurring opinion where Justice Scalia said, you know, unless otherwise, he basically paraphrased. The the appointment’s clause.

And then one of these law professors, a law professor wrote him a letter saying, well, does that, you know, does that does that mean the president is an officer? Is that what you’re saying? And he he Scalia wrote back, I mean exactly what I said that the that unless the If the constitution provides some method for appointing for for selecting somebody, then this the the appointments clause doesn’t apply and that means the president. Essentially, he wrote that the president is an officer. It’s just that he’s somebody who who’s whose method that who’s selected by another method specifically determined by the constitution and therefore not by the appointment’s clause, and he’s an officer.

And so and then if you go to the the history of the use of the word officer. There are instances throughout American history and especially during the the the reconstruction era. Where people assumed and believed and in accordance with the plain language of the term that the president was an officer of the United States, the chief officer to be sure, the chief executive officer to be sure, but an officer nonetheless. So the problem is that that they’re that they’re just any simple reading of the plain text of the provision. Hurts Trump, and that’s where one of the interesting one of the interesting clashes here is going to be are conservative or the conservative judges going to be I mean, they’re stuck if they apply the normal methods that that conservative judges should apply and do apply which is you look at the text and you try to look at the and you try to determine the original public meaning of that text.

This is what original textualism is all about. And if you look at that, the language is plain and there’s the context is plain. There’s just no way you can get around the fact that the that the president is an officer for purposes of Section three of the fourteenth Amendment. That’s one argument. The second one is whether or not Trump engaged in an insurrection.

And the the the Trump people have kind of moved that up in their presentation and but the problem that they have is they don’t really deal with the actual evidence. They basically just They basically ignore everything he did leading up to January sixth and they ignore the things he did during on January sixth, both at the on the ellipse and when he went back to the White House that, you know, was about basically fomenting and inciting this insurrection. And, as far as the whether or not it’s an insurrection is concerned, I mean, the basic definition of insurrection in any dictionary, old or new, or whether the time of the of the framing of the fourteenth amendment or other was is that an insurrection doesn’t have to be a coup d’etat doesn’t have to be an attempt to overthrow the government as a whole an insurrection is basically any use of force against a government trying to carry out its function. And that’s what was that’s what happened on January sixth. A bunch of people engaged in insurrection was designed to thwart, an action that Congress was required to engage in under the constitution.

And they succeeded for a number of hours in doing that. So the question really is gonna come back to whether or not, incitement in the way that Donald Trump cited the, January six insurrections, suffices to support a holding, which the district court here in in the state court in in in Colorado when the Colorado Supreme Court affirmed that Trump had engaged in an insurrection. And there’s a pretty some pretty good historical and dictionary of authority for the proposition that if you incite an insurrection and and in fact here Donald Trump was principal cause of the insurrection because he’s the one who who urged people to come to the the the ellipse on January He’s the one who told them to go march up to the hill on January sixth. He knew that they were armed and then later not later he he he he threw gasoline on the fire by saying that, Donald that, that, that, Mike Pence didn’t have the courage and the, while he, you know, after seeing that there was violence on Capitol Hill and then he praised them. At the end of the day, he praised the the the insular I mean, he wanted this to happen.

That’s what the Fisher Court found. That’s what the the Colorado Supreme Court found. And the funny thing is in in the Supreme Court of the United States, Supreme Court of the United States normally does not look at factual findings to overturn them. That it is not a function of the Supreme Court of the United States to be the ultimate reviewer of a factual record. In any ordinary case, what the Supreme Court does is it takes the findings of the of the lower courts and accepts them unless there is you know, uh-uh even if they just they just they just accept them and then and normally a any appellate court does that unless the the of the findings are clearly erroneous.

So I don’t know how the Supreme Court could possibly go back and say that that Donald Trump didn’t engage in an insurrection unless they do something that basically says that to engage in an insurrection requires you act to bear arms and to actually be Johnny on the spot up on the Capitol Hill at the front lines or, you know, where the violence is occurring. And and that’s just That that’s kind of hard to support. It’s just it’s contrary to language and it’s actually contrary to to authority.

Yeah. It seems like the Supreme Court would be more loathed to get into whether or not he’s an insurrection than whether or not he’s an officer. Like, that seems the safer course of of dispute. Right.

I mean, you you imagine what imagine of the blowback that would occur if the Supreme Court basically said, oh, no. He, you know, Donald Trump didn’t engage in insurrection. They don’t wanna do that, and it’s not something they normally do getting into the fact. So that’s that’s gonna put more pressure on the officer arguing the officer argument is just not very good. And then the other the other argument that the other major argument that the Trump people have is this argument that somehow section three of the fourteenth amendment is not self executing.

In other words, somebody is not qualified to hold an office if they previously took an oath and then engaged in insurrection. Unless Congress provides a method by which it can be determined. The courts or somebody can determine whether or not somebody engaged in an insurrection. And the problem with that is is that’s not what the that’s not what the thirteenth, the fourteenth amendment says. And there are a bunch of other provisions of the fourteenth amendment, including the one provision in section one that we are most familiar with, which is which says that no state shall deny anyone, any person equal protection of the laws, which is the basically the basic prohibition against race discrimination and gender discrimination and and all sorts of discrimination.

There If if Trump’s argument were correct, that provision will be unenforceable without congressional action, which it means that if Congress could were repeal all the civil rights laws tomorrow, then people could the states could engage in racial discrimination. That’s just not the law. And that’s the that’s not the law with any of the the reconstruction amendments, including the provision that outlaw slavery and the and and voting, the provision that on voting rights. So it’s not I don’t know where they’re gonna get. I don’t know how they win this.

So my do do they have to use one of Trump’s arguments in order to decide the case is fake?

They could come up. Yeah. They could come up with something I don’t know what that something would be.

Sorry, mister Trump. You’ve made no compelling arguments. Let me give you the let me give you the key to the test here. And if they came up with something else, they could do that.

Yeah, if they did and then and then they they could ask for and that’s why the argument’s gonna be very, very interesting. What are they going to focus on?

Who who is doing the arguing? Like who are the lawyers?

The lawyer, there’s a a fellow named Jonathan Mitchell, who’s going to be arguing, for the, for trump. And he’s from Texas. I I forget what post he held in the Texas government. He’s the guy who came up with the with the the idea that you could create a private right of action, to enforce Texas’s, prohibitions, against abortion. That’s what he’s known for.

He’s, you know, and The and and I think this, there’s a fellow from Colorado who’s going to be arguing, for, the plaintiffs, the the the Anderson plaintiffs on the other side. I mean, I didn’t actually take a look in on the Springboards website to see who they have already.

They might be famous a week from now, and we’ll know their

names for it. They’re gonna be famous by by noon noon on on Thursday. Absolutely.

So you filed an amicus brief, and I understand that amicus means friend of the court.

For end of the world. Yes.

And and when people they send in these Amicus briefs, they do that when they feel like they have an interest in a case My guess is that everyone and their mom thinks they have an interest in this case. So, but why don’t you tell us about your Amicus brief and How many Amicus briefs do you think that the Supreme Court got on this for this particular case?

I did not do a full count. There must be at least three dozen briefs. I I I I I have not done a full count. And our brief was pretty straightforward. And it’s joined by judge Lutig and some other people.

He’s like the principal lumenary on the brief. And our argument is just look at the text guys. Look at the if you’re a text, look at the text, look at the text of the Constitution article of of section three of the fourteenth amendment, and and really just emphasize to the court that if it applies its ordinary methods of constitutional interpretation, which is, again, first of all, to look at the text and try to divine the original public meaning of the text. Trump loses. So it’s really, you know, it’s a it’s it’s it’s a conservative argument made by conservative jurists and and lawyers.

At, you know, to to at the conservative justice, say, Hey, you know, you gotta put your money where where your mouth is here.

Did you see any of the other Amicus Brie that came in, like, do you know who else filed them? Was there any of that were weird or that you were like, boy, that’s a strange person to join in on this?

Yeah. There were. And I I I I confess I one of the things I just started to go through them and there are some decent briefs on both sides. And there are some weird briefs on on both sides. I don’t have the list in front of me.

But there are there there are all kinds of people in from law professors to random individuals to senators and congressman and former senators and con former congressman and pub other public officials. I mean, everybody has something to say. And and, you know, the problem with it is a lot of it is highly repetitious.

Who reads all those? Like I for some reason when you talk about things like this, I just am like somewhere there are a bunch of poor staffers, poor clerks You have to read. You know,

I I I can tell you what I would do if I were a justice and I I suspect that’s what I I I just seems to common sense is I think you’d go through the piles of briefs. You’d absolutely pick out the party’s briefs. And then when you saw, you know, some credible people either joining the brief or writing a brief an an amicus brief, you might pick some of those out just to see what’s, you know, what they’re saying to when you you take some select some sec section, some selection of the Amicus briefs and you’d read those. And then you’d rely on your law clerks to point out, is there anything new or different in any of these briefs that that that adds something? It’s not duplicative and that’s that’s how I would go about it.

And then if so, well, give me that brief and and and clip and put a post it on those pages and let me see it.

That makes sense.

That’s what I would do. So I I don’t think I don’t I I don’t think it would be worth reading every single page of every single brief.

Yeah. That sounded, especially one that comes in from, like, I have an opinion, Twitter Ron DeSantis six twenty five or whatever. Yeah, because anybody can submit these. Yeah.

They’re they’re very, very liberal about about taking these things. And basically, there’s no anybody can file one now.

Yeah. Do you think they’ll pull out you got when you say people who seem credible, do you think they’ll you and Judge Ludig, they’ll be like, let’s see what these guys have.

Well, maybe not me, but definitely Ludig. I mean, I’m gonna be looking at Ludig’s right at at at at a brief joy by Judge Ludig. No. Question about it.

Alright. So for folks, we’re gonna listen to the arguments online, which you can, right? Like you can listen to them as they happen. I guess C span has them, but just the audio. Yeah,

they’ll do a live stream. And so you can basically listen in real time And I think, not just c span, but I’m, I think, I, I, I wouldn’t doubt that, some of your major news Bulwark, cable networks will be will be covering it live.

And what are you gonna in for. Because one of the things I’ve heard this said by people who know things about legal stuff from time to time that you can tell a lot about which way the judges are leaning, by the questions they ask, like, what are you gonna be trying to hear, or listen forward to to glean which way you think things are going?

Yeah. You listen to see which what issues concern each of the justices and no, it’s it’s a It’s a perilous thing to predict sometimes what a judge is going to do on the basis of the questions because judges will, you know, ask questions sometimes both ways and they’ll play devil’s advocate. But I do think what we will be able to tell is whether or not which of the off ramps they are most focused on. And also maybe we’ll find out that they that that that They find this case. They find it hard to avoid the proposition that that Donald should be disqualified.

We may find out that they they that that they’re gonna really struggle with this case because a lot of people just assume that this case know, isn’t gonna be given the time of day in the Supreme Court, and then it’s gonna be easy for them to to to slough it off. I think it’s gonna be harder for and I think it’s gonna be very, very interesting to see what the questions are. And and and whether or not they you know, whether or not they seem satisfied with any of the off ramps and and the other thing about this argument that I think makes it really particularly important to listen carefully and to try to, you know, try and try to figure out what’s going on about it is the fact that this may not be you know, a right left conservative liberal split here. And because again, because it’s because there are, you know, we’ve seen it out in the public that that that not you know, the conservatives, conservative lawyers were the ones who came up with this argument because it’s a textually strong argument. And then there are there are liberal opinion organs that are basically saying oh, this is too much.

So, you know, there could be some scrambling here of the lineup. We just don’t know. I mean, I I think anyone who says they know what’s gonna happen on Thursday is smoking something because I think we have zero idea what’s gonna happen on Thursday and I don’t really think we have a clear idea of where the court’s gonna go and maybe we won’t even have a clear idea after the argument. So I don’t think this is going to be like the The DC circuit argument and immunity case where it was pretty clear, how they’re gonna come out. And I still think that they’re gonna come out with that pretty soon.

Yes. You so you’ve been clear that you’re a big fan of disqualification as a matter of the legal analysis, but there’s

a matter of the legal analysis. I prefer, you know, I’d I’d I’d I’d I’d prefer to see him trounced that at the polls. I think politically that’s a more satisfying outcome. But, you know, this one of the things we’re gonna hear in the argument on Thursday is One side is gonna be saying this is highly anti democratic and the other side is going to be saying no, no, no, this is what the framers of the fourteenth amendment to what the reconstruction Congress and the people who approved in the states, who ratified the the this constitutional limit This was their effort to preserve democracy by preventing people who would overturn the constitution and violate the constitution and tread the constitution from holding public office. I mean, this it it this is you know, this is about preserving democracy.

Yes. And as conservatives remind me in the focus groups all the time, we are not a democracy or a constitutional republic. So, you know, but hold on. Once I wanna ask you though, you know, so I know you’re a fan of disqualification. You’ve said, it could go either way.

But there’s a decent chance that that doesn’t happen. Right? There’s a decent chance they look they go for this off ramp. What is the potential fallout? If they do this.

Like, trump claims, total exoneration. You know, he says he didn’t do the insurrection. Do liberals feel like they’re already after Roe, questioning the legitimacy of this Supreme Court, does it exacerbate that? Like, what do you think happens if they don’t go for the qualification.

Well, again, I I think it really depends on what the lineup is and what the holding is. And I think we have no way of foreseeing that. Because again, it’s, you know, it may not be a five, four, or six, three, conservative versus liberal holding. In fact, I I’m I I think it won’t be. And then it really depends on what arguments.

They accept. I mean, if it’s a highly tactical argument based upon a, I think, wrong and tendentious reading of of what the word officer means in Section three of the fourteenth Amendment. That that’s gonna have a different effect, politically or public on the public discussion than the the court saying that Trump that that January six wasn’t an insurrection or that Donald Trump did not engage in an insurrection. Okay. It really is going to depend on what they said as much as anything.

And who says it? How the public reaction is gonna be. And I just at this point, I would not hazard a guess as to how how that’s all gonna come out.

Can you hazard a guess on the timeline? Cause we had a lot of listeners write in to ask about when the decision might come for this case. Best guess?

I look, obviously, I think they want to decide it very quickly, but I think they could easily I mean, I think there’s a lot of pressure for them to decide it quickly because, you know, the the the primaries season is ongoing. On the other hand, what this really matters for is the fall. And I I think they could take anywhere from a month to the entire length of the term through June twenty fifth to decide this. I just I just don’t know. I mean, I think they’re gonna, you know, I think it’s gonna be very difficult for them to try to figure out how write this and I think it’s going to be I I think it could be a very fractured court.

So I don’t know that we’re going to I would not expect the decision within a couple of weeks. I think it’s gonna be much harder for them than this.

And I guess the reason that we wanted to do even though we’ve talked about this fourteenth amendment reason we really wanted to tee up the oral arguments is I don’t know that people quite have their heads around what a big deal this is gonna be because of what you just said. Like either way this thing goes, it is gonna be a lot of people are gonna be upset about it. It’s gonna have enormous ramifications for the fall if if for some reason they do disqualify, we will have seen nothing like it, in our lifetimes. If they don’t, you know, that’s gonna have ramifications too. So, I don’t know.

It’s it’s a gonna be a big deal. And and It is

a big deal.

On a scale of I don’t know, legal things that you’ve watched happen before or how big a deal is it?

This is up there. I mean, this is this is a this is a ten. There’s no question. This is a ten.

Okay. You haven’t

seen in in the in the election context, we haven’t seen anything this important since since bush v gore, and that was a ten. This is this is one of the most important cases, they will ever decide. There’s no question about that.

Yeah. And lots of people still have strong feelings about Bulwark gore So if you think about it that way, it’s a huge, huge case. Alright guys. Thanks to all of you for listening to another episode of George Conway explains it all. To Sarah Longwell me.

Don’t forget to hit subscribe. Send us your questions at ask George at the Bulwark dot com, and we are gonna see you next week. Bye, guys.