Special Edition: George Conway Explains Everything (w/ George Conway)

Imagine the Speedport saying, oh, he didn’t engage in insurrection. They’re never gonna do that. They’d look like, you know, it would look terrible because everybody knows what really happened that day.

Hello, everyone. This is J. V. L. Welcome to a special, a very special episode of the next level.

With my best friend, Sarah Longwell, and Tim Miller. Sarah Longwell you got something actually very special for us. Late on me.

Yeah. So here’s here’s what I did. You know how I’m always on this podcast being like, well, I’m not a lawyer. And you know, that’s true. Right?

True. So part of the problem with this, upcoming news cycle is that it’s just all about lawyer stuff. Like on Friday, we got this like big news about the Supreme Court’s gonna hear Trump’s appeal on the Colorado. And the problem is I don’t understand any of it that well. And so I called up my buddy George Conway, the society for the rule of law, and I was like, George, I’m gonna need you to explain all this law stuff to me like I’m five.

And so he did. He did. And so we got a a little special up here of me asking George all the questions that I’ve had on the legal stuff if you guys like it, we might make it a more regular thing.

George Conway explains everything.

So I think we’re gonna call it George Conway explains it all. Parenthetical to Sarah. What do we think about that?

Well, I’m excited about this. I should tell you I’m, like, not that really impressed with lawyers mostly, and despite also not being a lawyer, kind of think I can fake it till I make it mostly, but one lawyer I am impressed with is George. So I I’m pumped to be, you know, kind of edu educated.

I know most people know him as like a corgi guy on Twitter, anti trump guy, whatever. He’s actually a brilliant legal mind. And, I just kinda I just put a quarter in the machine. So let’s hear it. Right.

It’s on the YouTubes. You’re looking

It’s on

the YouTube.

It’s on

the pods. Hello, everyone. I’m Sarah Longwell, publisher of the Bulwark, and I am here with my good friend George Conway, who is what they call a lawyer. And I am somebody. I’m a recovered lawyer.

Know, you you have one of those degrees that they give you from law school. I see you on the TV. I read you in the Atlantic.

Yeah.

But I, George, and what they called not a lawyer as people who listen to me on the Bulwark. No. I’m constantly having to say I’m not a lawyer and it is much to my dismay. That so many of the political things that we are going to discuss over the next year as we go through this election acquire a law degree because we have a former president who is a criminal who’s been indicted on ninety one counts We’ve got states kicking him off ballots. We’ve got an obscure, segment of the Constitution, section three.

It’s just one giant witch hunt. Just one giant witch hunt.

He is appealing. So there’s just so many things going on. Here’s the thing. We are gonna do a segment that we I I texted George and I was like you gotta you gotta do a segment with who we’re gonna call it George Conway explains it all to Sarah Longwell she’s five. Okay?

Because I believe

Hey, little sour. Would you like a lollipop salad, Sarah?

I I don’t see ice cream. I’m not trying to demean, like, myself or my intelligence, but I am trying to, those I believe that there is a hunger out there for people who wanna understand what all this news is legally, but are not lawyers themselves, and they don’t wanna get into the weeds, but they wanna understand why this matters so much, right? And you have a piece in the Atlantic today, which I read, and still I understood it, but it was still a little over my head. And so here’s the thing I wanna start I just wanna start with some some basic thing, which is Friday. The Supreme Court says they’re gonna hear Trump’s appeal basically of this Colorado decision to keep him off the ballot under the fourteenth amendment.

And I guess for me as somebody who doesn’t understand the legal side, the one thing I do understand and that you were saying this in your piece, but I wanna get into it is This is this this section of the constitution is a completely novel, unlitigated section of the constitution. Right? So my understanding is normally with the law, people talk about it a lot. It’s litigated over and over again so that the Supreme Court right? Has lots to fall back on when it has to rule in a major case like whether or not to keep a president off the ballot.

But because there’s basically been no discussion of this since the civil war, they are now going to have to make a big decision about whether or not this whether or not Trump can be on the ballot in like thirty days. And so that is that is that why this is so insane? Like first, just to explain why this is such a big deal.

Well, it’s a big deal for the reason you just said. And it’s not novel in the sense that this is something that has been in the constitution since I guess eighteen sixty eight. But it’s novel to us because we’ve haven’t had insurrectionists seeking public office. In our lifetimes or the lifetimes of our parents and probably in our grandparents unless you’re like Zachary Taylor’s grandson who apparently is alive. So, that’s the reason why people are looking at it and say, where where did this come from?

And the answer is it came from the fact that after the civil war, Congress, the reconstruction Congress realized Hey, wait a minute. We sent all these guys home, you know, with their weapons and and the officers got to keep their side arms. And they’re just gonna run for office again and we’re gonna have to do this all over again. What are we gonna do about that? And so one of the things they did, you know, thirteenth Amendment.

They got they they they formally abolished slavery that for for, I mean, the thirteenth Amendment, the fourteenth Amendment. They guaranteed equal protection laws. And they also had this provision that prevented people who then engaged in insurrection, from holding further office. And then it was forgotten about for a long period of time other than by historians until somebody said, hey, wait a minute. We have this president who former president who wants to run again and he incited this insurrection and he engaged in insurrection and these two law professors One of whom I went to law school is both members of the federal society wrote an article.

A very good article based upon The, you know, all the methods that conservatives have been preaching about how to interpret the constitution for the last forty years. Originalism, the textualism, looking at the legislative, the legislative history or the context in which mean words were drafted. And they came to the conclusion that this language in section three, which is pretty simple barred Donald Trump. And so right. Hold out.

Okay. Hold out. Okay. I’m talking to you.

I’m just gonna stop for one second. No. Just because because I’m I’m It’s supposed to be five here, and I’m not sure that my I’m gonna recap. I’m gonna recap what I think I need you to say. The first part of what you’re arguing here is why you think the fourteenth amendment is valid.

Right? Yeah. That’s what you’re saying. And that’s interesting to me in part because I read in your that in your piece, but when you and I talked a while back, you aren’t sure that you thought that you agreed with our colleague and my art colleague, your colleague, and a guy I know. Because I’m not a lawyer and not his galley.

No. But but you both thought the fourteenth amendment, he was very he felt very sure that the fourteenth amendment should apply in this instance, and you were a little more medium on that. You were like, I’m thinking it through. And then you got

You know, I I was, I’d have to say I came with a bit of a prejudice against the application of section I mean, of of the fourteenth Amendment Section three in that I wanna see this guy I wanna see this guy beating like a drum because I think it would be best for the country politically for this guy to be trounced in the twenty twenty four election. And I do think at the end of the day for reasons that would be, you know, you could have another podcast on. I think that’s what would have or will happen if he’s on the ballot. But that said, I mean, I also have this, you know, this this instinct in me of, like, well, of that law says it, we have to apply the law. So the question was, so I was sort of agnostic for a while and skeptical of the politics of it.

It wasn’t my preferred result, leaving apart the question of whether or not it was constitutionally required. And then I kinda read more and more, and then I got into it again. Reading very carefully the Colorado decision and Ron DeSantis. And the descents are very the scents are very useful things in in in appellate courts because they they represent if there’s a if there’s a criticism or a weakness in a majority opinion you’re gonna see a smart dissenting judge just cut cut through it like butter. And I didn’t see anything remotely compelling in any of the dissents in the Colorado case, and I read the Colorado decision the the majority opinion and it was all the arguments I’d seen before.

And in their most refined form, and I thought Okay. This is this doesn’t look like a fair fight. I’m convinced. Okay.

And then the second one though, the second one is the one I wanna ask you about because you’re saying, okay, Congress didn’t have convict him. Like, obviously, we wouldn’t be here today if Congress had just done its job and convicted him right after, especially. I’m yes. Yeah, the Senate specifically. Especially since, you know, if you go back and read what they said back then, a whole bunch of the Marco Rubio and, Mitch McConnell were saying things like, Well, you know, he’s not president anymore.

And so the if if if people wanna use the law, you know, the law will be there to to hold him accountable. Right. Most

most notably Mitch McConnell, although Mitch McConnell hasn’t he’s been silent as a church mouse on this. But at on February thirteen twenty twenty one, that right after the acquittal was entered, and the chief justice went back across the street. He gave a speech on the senate floor, basically saying we have a criminal law in this country.

President Trump is still liable for everything he did while he was in office as an ordinary citizen. We have a criminal justice system in this country, and former presidents are not immune from being accountable by either one.

And if Donald Trump basically, if Donald Trump committed a crime year and you have a pretty good argument there was, that’s that’s the recourse. And, if you and and somebody sent me the other day, somebody who wanted to be re remain nameless, but was kind of obsessed with this issue. He he went through the congressional record and, you know, all the remarks that the senators made at the time that they voted and then, you know, obviously, they they revise and extended their remarks as they all do. And he tallied how many Republicans actually thought actually voted to not to convict him on the grounds that he was not guilty as opposed to, the the the legal big leaf that they used by saying that that, you know, he’s out of office, so we can’t really do anything to him, which I think was wrong. And about seventy of There were seventy senators.

Okay. Democrats and Republicans who did not who basically voted who who expressed the view that the guy was responsible for January sixth. So if they had, you know, if if if you take that seriously, you know, he should have been convicted. But they they didn’t take their job seriously. They thought he’d just go away and sorry.

Here we are.

But I will say this is the one argument that I’ve heard and maybe I even made it early days because I was sort of like, doesn’t somebody have to convict him of insurrection? No. So that we know and that’s your point there as you’re saying, no, the courts can determine. There’s like the Colorado Supreme Court is within its right to determine that Trump fomented an insurrection and make that judgment that he should be kept off the ballot.

Right. I mean, you don’t have to have somebody did, you know, there are other qualifications to be president. You don’t need a judicial proceeding for a secretary of state to decide that somebody who says that their birth date is nineteen ninety is not old enough to be present in the United States. I mean, there are other requirements and it doesn’t require litigation to establish those. And of Congress, but more importantly, to go back to, you know, to put on to channel my inner inner antonin Galia, if Congress had meant to say that people had to be convicted of a crime, the crime of insurrection, in order to be disqualified, they knew how to use that language.

And they did not use that language and with good reason. I mean, you you’re gonna have what happened was that at the end of the civil war, I mean, for example, Appomattox, they they collected all the arms of the enlisted men, put them in a big pile of the of the of the confederate enlisted men and let the officers keep their sidearms and horses and just send everybody home. Because he couldn’t imprison everybody, all hundreds of thousands of of of southerners who who bore arms against the United States. He couldn’t prison them all. You couldn’t prosecute them all.

So it didn’t make any sense to have a conviction requirement. And it wasn’t, you know, it wasn’t, it wasn’t gonna be much dispute about who took up arms against the United States and who didn’t, basically, because every evil body white man in the south took up arms against the States. So it wasn’t it didn’t make any sense to have a conviction requirement.

But I guess the the questions were the difference is is So if people talk about the age or, you know, being a citizen of the United States, are there objective standards? And I guess the question is is in and even in the civil war if you fought for the south, I guess it was pretty easy to know that you or were an officer in the south that you engaged in insurrection or sedition because that was sort of commonly but but like I think the question is is the is that it is did Trump Trump engage in an objective definition of insurrection? Yeah. Absolutely. I mean, you know, I okay.

I listen to voters all the time, right? And they’ll always be like, whoa, the people who went building. That’s different. Trump didn’t do anything. He just said some stuff.

Yeah. I mean, and that’s that’s that’s just poppycock because here’s here’s a guy, by the way, who assaulted his Secret Podcast.

Watch your

Try to go up to them. What do I say?

You said poppycock. I was just joking.

Poppycock. Oh, okay. I usually say bull I didn’t have to get in trouble for that. But, it’s poppycock. And, it’s not just about what he said on January sixth, which, you know, had the intended effect of sending these people up to the elite nuke.

I mean, there’s so many different facts about January sixth that are damning that he knew these people were armed, but they were, you know, they weren’t refusing to come through the magnetometers because they were armed. He said he didn’t care. Because they weren’t out here to get him. He told them to fight about sixteen times. He used similar language.

He said if we don’t go up there, we’re not gonna have a country. I mean, now in the context of what he was seeing in front of him, it was obvious that he was inciting violence. And other people noted that too. I noted it, like, twenty four, forty eight hours before I did a hit on Morning Joe where I said god knows what’s happen on January sixth. These people are coming here with weapons.

And, you know, I I it was pretty I mean, he caused this to happen. He was he was a direct cause and as the as the Colorado Supreme Court held because none of this would have happened without him It was his lies that got all these people to come to Washington. He urged them to come to Washington because it quote unquote will be wild. I mean, he was the central figure in inciting and or basically organizing this insurrection and it was an insurrection because an insurrection doesn’t require, you know, it doesn’t have to be a coup they taught. It doesn’t have to be a successful coup.

It doesn’t have to be a rebellion, a full scale rebellion, like the civil war. And insurrection, if you look at the definition means just, you know, some attempt some resistance to civil authority in an attempt to to stop civil authority from carrying out its functions. And that’s what they did that day. And they they they tried to stop the most important function you could ever imagine in the United States, which is the essential piece full transfer of power from one democratically elected administration to another. So I, you know, it’s not There’s no it’s pretty obvious why Trump’s people in their petition for social rare.

I just buried that issue. They just buried that issue because they know

they can’t. Let’s talk about this. Let’s talk about this. Okay. Because we’ve now, I think, established well, why you think the fourteenth amendment Section three does apply to Trump.

Right.

But but what happened Friday that was sort of a bombshell was the Supreme Court is gonna hear this they took they had two options for cases they could take. They could have taken the Colorado GOP case, which in your own writing said that was like a normal That was a normal case, and then trump did as he normally does like a weirdo, case, but they took Trump’s weirdo case. So why? So tell me, tell Well,

because I think they I I think well, first of all, normally, the Supreme Court, I spell this out in the Atlantic piece that I published today. The Supreme Court doesn’t take whole cases, really. It takes issues. It takes cases on the basis of the issues they present, and then it only takes some issues in a case. And those are the issues that are the most important to the country, whether it be because they affect more people because there there are conflicts in this in the circuit courts and the state Supreme courts about them.

They focus really on issues. They don’t say did the district court and this court of appeals get this right or wrong and look for reasons to affirm or reverse. And what Trump’s petition did. It did something that they would tell you not to do if you were taking a course in appellate advocacy. It basically said, was the Colorado Supreme Court right?

I think that the best argument they that that Trump could possibly make here would be the one that you referred to. It’s like, oh, well, he didn’t and I think it’s weak as I said. I, you know, he didn’t engage in an insurrection because he didn’t bear arms and march up to the hill. He the secret service stopped him from going And he didn’t, you know, he didn’t he didn’t issue specific orders to the proud proud boys or this group or that group. I don’t think that gets him off the hook for Engage, but it’s actually the best argument he has.

But right now, and and because that, you know, it’s it’s the best argument he has and it’s the least likely one of the least likely arguments for the Supreme Court to say, because you imagine to to to buy because the Supreme Court, you imagine the Supreme Court saying, oh, he didn’t engage in insurrection. They’re never gonna do that. They look like, you know, it would look terrible because everybody knows what really happened that day. But I think the reason why the Supreme Court took this, what I call, Blenderbust quizinar question that mixes everything in, is that they realized too that this case isn’t really being well presented to them and they have no idea how it’s going to come out and what issues are going to matter. And so they wanna keep their options open too.

So I think what they decided was we gotta move fast. People expect us to move fast, and we’re just gonna have to see how this all shakes out and it’s gonna be it’s gonna be rough and tumble, but we’ll see. And I do think that they they wanna keep their options open because they, you know, that they can probably see these questions aren’t you know, this is a big deal knocking this guy off the ballot. And right now, the principal issues that you look at and see aren’t particularly strong for him. So you don’t, you know, they wanna keep their options open because, you know, it’s understandable that they would have trepidation in doing something that has never happened before.

But, of course, the reason why it has never happened before is because we’ve never had a criminal like Donald Trump try to overturned the constitution in the United States.

And let me just ask you this. You know, I don’t know, I was talking to a lawyer friend of mine, and one of the things she was saying is that oftentimes when people put these questions or write these briefs, they have justices in mind that are their audience. Yes. Yes. That they think they can persuade.

So who do they who does Trump and his lawyers think are their persuadable obvious.

I think they they would I mean, obviously there’s raw partisanship that they are hoping would would come Bulwark in their favor and I and I honestly don’t believe that’s that’s what motivates these justices.

Okay.

But I think know, for example, with Roberts, Robert is a cautious guy. Right? He’s he’s somebody who’s very, very understandably as the chief justice of the United States is understandably concerned with the reputation of court, and he wants to make sure that the court doesn’t get too far out over its keys, which is why, for example, he wouldn’t have overruled Roe, but he would have you would have cut it back some. And that’s why he, you know, he he he’s he’s particularly, concerned about stare decisis. And in this circumstance, this is, you know, and

and Sorry. You used a Latin phrase that I don’t

Star a decisces is the is the general proposition that you stick to decisions that have been previously rendered and you don’t Yeah. Say, oh, they’re wrong and let’s change

the board. Pressident. Right.

Press it. You stick to precedent. You know, it’s it’s not it’s not always done. It doesn’t it’s not a hard and fast rule. But he he he he very much very much is cautious in that regard.

So I think they’re going to wanna play on his cautiousness. And the fact of the matter is they’re gonna be they’re going to be people, may there could be the some of the democratic appointees may be cautious about this. I mean, we’re seeing a lot of of liberal commentators. I’m not necessarily persuasively in my view. Say that, oh, this is a terrible thing disqualifying from that.

They don’t provide any good legal reason why he should not be disqualified, but there’s a lot of concern by some of my liberal friends about this is not a good thing. Think ultimately it comes down to their fear that the Maga people will rise up in violence if the law is enforced against their guy, but they’re gonna do that. If they’re gonna do that, they’re gonna do that for any number of things. Any number of legal consequences that might befall him, and I don’t believe that we should not enforce the law simply because people, you know, want to intimidate us into not enforcing it along. So I talk too much.

No. No. You’re great. Okay. So just one another question, but so what does this mean for the other states that are considering kicking Trump off the bat?

Right? So the Supreme Court takes it up and I presume that whatever they come up with applies to every it’s gonna be federal, right? It’s gonna apply to everybody. Well, not necessarily.

Let me and let me explain why. I mean, if they say that Section fourteenth I mean, section three of the fourteenth amendment applies to the presidency. Yes. That will govern everybody. If they say that section four section three of the fourteenth amendment is self executing and doesn’t require legislation by Congress and doesn’t require a criminal conviction.

Yes. That will that will control everybody. On the other hand, the the finding that he engaged in insurrection, you know, that they they’re gonna review that on a differential standard. And they’re going to say that we can’t, you know, we can’t find error in that. And, you know, it could be that somebody could say, no, a court could say, well, that was the record in Colorado, but applying the definitions that the Supreme Court self used in affirming the Colorado decision.

We have a different record, and, we’re gonna come out a different way. So it’s it’s conceivable that the the the Supreme Court’s decision doesn’t completely bind every other state with respect to the findings that the Colorado courts made on the particular record that was before them. Although, frankly, if a full record is presented to any fair tribunal. I think they get to the same result. I think the thing the the aspect of that that would apply to other states would be if the Supreme Court says Here’s what we think that the the the four the framers of the fourteenth amendment meant when they used the word insurrection.

And they say, and insurrection means x and then engaging in an insurrection means y, well, x and y would bind everybody. But if they do, like, what the Colorado Supreme Court did, which was the basis of saying, we don’t have to decide which, definition to use because he meets all of them. You know, I I I I you you could end up with with but I mean, that that would be binding. I guess that would be binding on course. I I I think long the short answer to my long answer short summary of my long answer is I think it probably will bind the other states, but they’re gonna be they’re gonna be wrinkles.

And we have to see the procedural postures of the other other states and how how the issues been up in those states.

I mean, to me, it just seems like the whole point of the Supreme Court taking this up is to get some kind of a resolution.

No. No. Absolutely, it is. We are. I think it will right.

I think there will be there there will be a lot more clarity obviously after they rule. I just I’m just saying I can’t guarantee that it will be the last word because we have no idea. We have no earthly idea what they’re gonna do and how they’re gonna do it.

And because I think in terms of the political calendar, so they’re gonna hear oral arguments February eighth, right? Which is just less than a month from now. And then how how long until they make a ruling on it? Like fast. Right?

Yeah. I think, I mean, I don’t think they will move as fast as, say, the DC circuit is going to move in the immunity case that’s being argued on Tuesday. But it’s conceivable that they could render a decision within a I think the fastest you could expect this court to issue a decision would be in three weeks maybe because I think it just it just takes it’s a nine member court. It takes a while. Or, you know, maybe maybe they can do it faster.

The worst case. I’m gonna

do, like, five days out from Super Tuesday.

Yeah. I but the problem they have now already is that, you know, in Colorado, he’s gonna be on the ballot because they already they already said bounce off to be printed. This I don’t think that this decision is going to be rendered in time to allow states and I I don’t look. I don’t know what the ballot printing schedules are to change what their ballots are gonna be on super that. I honestly don’t think so.

But I think, you know, it’s important obviously for going forward to the later primaries and also obviously for the general election to know you know, have some clarity on on on the scope of section three of the fourteenth amendment. And you know, some guidance as to how it applies in this particular set of facts.

You know, I’m so glad you brought that up because this is something that I’ve been wondering about. So it’s conceivable that he gets knocked off some ballots, and but not all he still wins the primary. Right. And it’s really then a question of the general election. So if if whatever gets decided Now will that will apply to the general or will it continue to get litigated the whole way through?

I think that whoever loses may keep trying to litigate it if there’s a if there’s a window for litigation. I think that, I don’t think I’m I’m not convinced necessarily that this is going to be the last word. Unless the Supreme Court holds, for example, that it just doesn’t apply to the president or holds that Under no set of circumstances, could you have someone engage in an insurrection if they unless they carry, we’re carrying at least a musket. Okay? If if if they hold something like that, then that that could wipe out that could wipe out all the disqualification efforts.

But other than that, it’s possible. As I said that that that that that they may prescribe. They may say, yeah, it does apply to the president. Yeah, it does apply without a conviction. And, On this record, the findings, we can’t overturn the findings.

You know, there’s gonna they’ll still look for error in the decision. I that’s the thing. We’ll say. Okay. We’re we’re it’s it’s really hard to say in the abstract.

You actually have to have an opinion And then and then even then, it could be that people are gonna try to sit there. They’re gonna be noodling for weeks trying to figure out, well, what it what where what’s what’s open to to litigate

have you seen anything like this before in American history? No. Like, I I want people to understand and kinda get their heads around how wild. And even I was like, oh, the yeah. Yeah.

I was like, oh, this is crazy, but like my friends who are lawyers are like, no, no, no, no, you don’t understand. This is the most bananas thing ever. We’ve never seen anything like it. Tell us how crazy it is.

Well, it’s it’s bananas not in the sense that that it’s legally bananas. It’s bananas that we have some a man who is likely to be a major party nominee for president who you can even make the argument about should be disqualified. I mean, as a good point that my friend, Edwin made the other day on Twitter, was like, even if he’s not disqualified, even if the law is is what he says it is, consider the fact that we’re even talking about this, and it’s because this guy basically tried to overturn the constitution. So that’s what bananas about this. What bananas about this is that he’s still there.

He’s still out there. The Republicans take him seriously that he what bananas was, as you pointed out earlier, that he wasn’t, barred from seeking future public office by the United States Senate when it faced you know, when it, when it, tried him on the impeachment Charlie Sykes. That’s what’s bananas. He’s bananas. The situation the political situation in the country has been in.

So the fact that there’s litigation that seems bananas and could reach a bananas seemingly bananas result as those flows from all the other bananas that are floating around out there.

Yeah. That makes total sense. It’s a lot of bananas. George Conway. Okay.

Yes.

So we don’t wanna be a banana republic.

We don’t. We don’t. That’s right. So great way to close this this this this weird segment we’ve done. But guys, if you want us to do this more, you can tell us in the comments.

I know that I still am not a hundred percent clear on what’s going on, but I am like sixty percent better after having listened to George. I hope you are too and, I wanna thank George. George, thanks for, sharing some of your wisdom. It was great.