Welcome to Politically Speaking.

I'm Elizabeth Bennion Chancellor's professor of political science and director of Community Engagement and the American Democracy Project at Indiana University, South Bend.

The Supreme Court ruled Monday on a case involving state's authority to remove former President Donald Trump from the ballot under the 14th Amendment.

Joining us today to break down this decision and its implications is Derek Muller, a professor of law at the University of Notre Dame, whose research focuses on the role of states and federal election administration, the constitutional contours of voting rights and judicial limitations in election matters.

Thanks so much for joining us.

Thank you for having me.

Let me start by asking you to talk a little bit about that.

Trump v. Anderson case and what it was about, why it's important.

Sure.

So after the January six, 2021 riots of the Capitol, a lot of people blamed Donald Trump for his involvement in those for instigating them.

And questions arose about the scope of those riots and whether or not they rose to the level of what we would label an insurrection.

That's important because Section three of the 14th Amendment Amendment to the Constitution passed after the Civil War prohibits those who have taken an oath to support the Constitution and then later engaged in insurrection, prohibits them from holding office.

And so as Donald Trump is running for election, as he's running for president and a number of states began to look at this provision and say, can we keep this candidate off the ballot?

Can we determine whether or not he engaged in insurrection?

And if so, we should keep his name off the ballot because he's ineligible to become president.

So this case comes out of Colorado, where a trial court heard a challenge from a number of voters who said he's ineligible.

He's not eligible to serve.

The trial court in Colorado concluded that he could serve because of a specific understanding of the 14th Amendment.

But on appeal, the Colorado Supreme Court, by a43 decision, said actually Donald Trump engaged in insurrection.

As a result, he's ineligible to hold the presidency.

And therefore, we're going to keep his name off the ballot.

So that's how that case began and got to the Supreme Court.

Now, in fact, the Supreme Court ruled unanimously that Colorado and other states could not keep Trump off the ballot using this charge of insurrection.

There are a few different explanations, is there?

But in essence, why not?

Yeah.

So the court was unanimous, at least on a narrow point, to say that states do not have this authority.

And they had a variety of reasons for getting there, and they couldn't all necessarily agree on the same path, but they all agreed on the heart of the reasoning, which is the Constitution speaks of this provision in terms of a limitation on state power, the 14th Amendment and the amendments after the Civil War, abolishing slavery, guaranteeing the right to vote regardless of race, color, a previous condition of servitude.

These limitations on the states.

And so it was a little strange, the court says, to think that this expands the power of the states to judge who engaged in insurrection.

This is a question for an office.

It's a federal candidate.

And we don't think states can remove the president or remove federal officers.

So in the same way, maybe the states can't remove a candidate's name from the ballot who's running for a federal office.

So they had a number of structural reasons, textual reasons, historical reasons that when they sort of piece them all together say this is just not something that states do for somebody else.

There's a little bit of dispute about who that is, whether it's Congress or maybe other bodies in the federal government.

But but there is broad consensus that this is not something that states should do.

As we think about this limit, as a limitation on states power, at least this argument, they overstep their power.

How does the context of the 14th Amendment help us think about why all of the justices may have ruled as they did what was happening at that time that the amendment was really trying to deal with?

Yeah, So after the Civil War, obviously, we have a number of states that had seceded from the Union and we're now re admitting them to the union.

So as a result of this sort of fight about the balance of state power and specifically about slavery, but more broadly about the relationship between the federal government and the states and and how much power the federal government has with the relation of the states.

These provisions of the Constitution are really meant to limit state power.

No, slavery cannot abridge the right to vote.

States cannot abridge due process or equal protection.

So there are all these constraints being put on the states.

Additionally, it's empowering the federal government in each of these amendments to the Constitution, says Congress may enforce this by appropriate legislation.

So in that context, the court is kind of stepping back and looking at this overarching structure to say, you know, this is not really a provision designed to empower states to give states authority and particularly with respect to federal officers.

Right.

It's a little strange to say the state of Colorado can determine whether or not somebody is eligible for president, given that the presidency is a national office.

So the court is, again, looking at these relationships of states with the federal government in the context after the Civil War and concluding that there's just no state authority, at least in this particular context when it comes to presidential candidates.

Given that focus on the 14th Amendment and what you've just said about the context of the amendment and the purpose of the amendment, were you surprised or unsurprised that all of the justices ruled in favor of Trump?

And so I think before the Supreme Court had oral argument, I would have been a little bit more surprised.

I think there was a lot of dispute in the legal community thinking about these questions.

These are hard questions and they're contested questions.

There's also no question that the states have sometimes enforced provisions of the Constitution on their own and said, you know, if we're trying to guarantee the freedom of speech or the right to bear arms or due process, we as states can provide our own mechanisms to enforce those things regardless of whether or not the federal government does so.

But after oral argument, you heard Justices Kagan and Barrett and some others were expressing concern that really one state affecting a national office or a federal office.

And so it became clear that they're not just concerned about these rights generally in the Constitution, but instead the fact that it's specifically targeting federal officers and how states could affect federal officers.

And there are a few old cases from the Supreme Court saying, well, of course, states can't remove a federal officer from their posts.

That doesn't make any sense when we think about the relationship of states with the federal government.

And so this at least kind of followed from that same logic.

And I think the court coalesced around it.

I mean, in part because Colorado here really forced the Supreme Court's hand to take the case.

Right.

One state finding that a candidate engage in insurrection really has ripple effects throughout the United States.

And I think the court was really concerned about that practical effect as much as the structure of how the Constitution fits all these pieces together concerned, in other words, that other states might look at Colorado and say, well, I guess we could do the same thing and remove him from the ballot here.

Yeah.

So they were, you know, immediately after the Colorado decision, Maine actually excluded him from the ballot for the following week.

Illinois just a couple of weeks ago excluded him from the ballot.

So you started to see this percolating in a number of states and the ripple effect and what happens in one state and again, it's Colorado, it's Colorado procedure or it's a Colorado judge who decides what evidence to bring in a Colorado judge, deciding what kinds of expert testimony to take in, what kinds of hearsay evidence is admissible or inadmissible.

Right.

Lots of sort of lawyerly things, But it's a little strange, the court says, to have one state being able to have that kind of influence and effect in other states.

So you can practically the United States Supreme Court can always step in and provide that uniformity.

It's a federal question.

It can provide that guidance.

But it didn't seem interested in I wanted to say this is just outside the hands of the states.

We don't have to address the question because states don't have the power to address the question.

How important is that unanimous decision in a case like this?

Politically, there's a lot of polarization going into the case.

You heard people who are not fans of the former president say, people who he appointed to the court are going to try to protect him, worried about a politicized decision.

Does that make this unanimous decision, particularly important from a broader social perspective?

It I think, you know, the notion that the court would speak with one voice, right.

And speak clearly is, I think, desirable.

The Court always desires that it aspires to have unanimity as often as it can.

And some of its most significant cases, if we talk about Brown versus Board of Education and desegregation of schools, it was very important for the Supreme Court to speak with unanimity on hot button contested political issues.

It doesn't always do that, but always successful.

It tries to do that.

So when it comes to this, especially where the consequences are so stark in partizan terms, right, my candidate can appear on the ballot or not.

And that effectively ends the election for a candidate, right?

So the political significance is really high.

And I think for members of this court, they look back to 2000.

Only one member of the court is still there from Bush versus Gore, where it was a54 decision, very fractured, very disputed, very partizan.

And I think the court doesn't want that appearance.

They want the appearance of some consensus and unanimity.

And I think in this case, it was a little bit harder to get to the one opinion that everyone agrees on.

There were some fractures in the opinion, which I hope we can talk about, but at least at the bottom line, they presented to the public that all nine justices, regardless of ideological background, regardless of dominating president, agreed on the outcome.

And I think that's an important statement to the political process.

Let's talk about those differences, though, because we have a majority opinion, but we also had Amy Coney Barrett having a slightly different reason for her opinion and then the liberal justices having yet another sort of reasoning or justification for their opinion.

Can you talk about the differences in terms of the way these justices arrived at the same ultimate conclusion?

Yeah.

So the state power point, that is states do not have this power was broadly agreed upon by all the justices.

But there was an additional sort of layer of argument that the majority went through that again.

Justice Barrett peeled off from this and then some other justices also peel off further and say, we're not even going to join any of the reasoning of the majority opinion.

And that was saying that Congress holds this power, not the states.

That might sound like a very subtle distinction here, because, of course, when we think about this, if states don't have the power, who else has it?

Well, Congress obviously has power to enforce the provisions of the Constitution.

It has passed an Insurrection Act which helps identify who has engaged in insurrection, gives them a criminal trial subject to due process.

It's a way of enforcing the guarantees of Section three of the 14th Amendment through its sort of power to enforce these things.

But I think for the concurring justices, they were worried about, well, are there other actors in our system who can be involved at the right time?

So one of the examples that the concurring justices, Justices Sotomayor, Kagan and Jackson gave was suppose that you are prosecuted by somebody who is alleged to be an insurrectionist and you raise a defense to the judge to say that prosecutor can't prosecute me.

Well, there's no statute maybe on the books from Congress explaining what that looks like.

But maybe I, as a criminal defendant, want to raise this as a defense, saying the prosecutor has no power here.

So it's this I think it's a little bit confusing at times to read the fight between the majority and the concurring justices about what's at stake or what what might be at stake in future cases.

Is this only for Congress or other federal actors in our system?

But I think that's the concern that's going on among the justices, this sort of separate fight about how far to go in the opinion.

And what about Barrett?

How was she different from either of those two camps?

Yeah, So the concurring justices, they had some hostility in their tone and in the way they were writing the opinion about how the language was gratuitous, how it was erroneous, statements like that.

The opinion cites cases like Dobbs, a controversial decision from the Supreme Court that reversed Roe versus Wade and found that there was no constitutional right to abortion.

So citing cases like that in your concurring opinion is meant to elevate the temperature and to sort of sharpen the disagreement that you have with the majority opinion.

So Justice Breyer wrote a very short, separate opinion saying, look, I agree with part of the majority.

I'm not agreeing with all of it.

I would have gone a different path.

But there's consensus here, and I wish the concurring justices would turn the temperature down, not up in a case like this.

So she was trying to straddle a middle position of expressing some disappointment with the majority, with its path, and also expressing some disappointment with the concurring justices in their tone to reinforce that the court is unanimous on this front and not to lose sight of the fact that it's 9-0 on the outcome of this case.

Does Barrett's writing in some ways suggest that the court is very well aware of the political stakes of the decision, as well as the fact that they need legitimacy?

That's the only power they have without the power of the purse or the sword and sort of this warning almost to the court to, you know, if we can't appear unified with a unanimous decision, when will we ever appear to be unified?

Yeah, it Justice Barrett is definitely aware of the public perception.

And I think all the justices at various times in public appearances will talk about this and talk about the relationship they have with their colleagues or how they get to different reasoning.

Right.

But they also want to have opinions that can be understood by the public and viewed by the public with sort of a basic lay understanding.

And even if you're not an attorney to see if there is unanimity or consensus or whatever it is.

And when you have justices fractured, despite them agreeing on the outcome, it can really send mixed messages.

So I think she is aware of that and communicating that it was very important in this case to have unanimity and there was a failure.

There could be different places to blame about where the failure came from.

The majority picked the wrong path.

Concurring justices fight about something that's maybe not as important, whatever it might be.

So I think she was expressing some of that concern.

Again, in this case, as we talked about, we aspire to have a 9-0 opinion and it's clean and consensus driven in opinion as possible, where the partizan stakes are just so stark and we know what that means to communicate that message to the public.

What would you say to people who say, I guess the court decided that Donald Trump did not commit insurrection?

That's not really what they decided here at all, is it?

No, that's right.

They did not touch the question of insurrection, whether or not Trump engaged in it, whether or not his speech was protected, his conduct was acceptable.

Whatever it was, it was very clear at oral argument.

The Supreme Court wanted nothing to do with a lot of those facts.

Right.

They didn't want to get into the nature of tweets on January 6th, 2021.

Instead, this is a different question.

It wasn't whether someone engaged insurrection.

They addressed the question of who gets to decide whether someone engaged in insurrection.

That's always an important question in law.

Who gets to decide?

Is it a court or is it the legislature?

Is it the states or is it the federal government?

Is it one official or a body of officials?

So that's always a question that law is asking.

And they were really focused on that particular question.

It was meant to address that predicate question, that first question before getting to the heart of the case.

That's deeply unsatisfying to many.

Right.

Who are looking at this.

And they want to either blame Trump and find that he's responsible or those who want to exculpate him and say he's innocent, he didn't do anything wrong.

The Supreme Court sort of expresses no opinions on that and leaves it to other actors in the political process, leaving, I think, to the political campaigns in 2024 to fight about that matter rather than staying that states like Colorado can make the determination.

And it sounds like their answers to the questions that they really were considering then are.

It's not the state's decision, it's the federal government's decision, either exclusively Congress or perhaps some other actors within the federal government who will have to make that determination and definitely not us.

That's right.

No.

And I think when Congress has passed statutes, again, the Insurrection Act is one of them.

It's passed some bills to address these issues in the long past.

But it certainly didn't do anything after 2021.

Write it and impeached President Trump.

It failed to convict him in the Senate.

It the House created a commission to examine a number of these issues.

But that's been about in terms of the congressional legislation piece.

And I think people are frustrated to say, well, you know, we're sending it to Congress, but we're aware that Congress is deeply unlikely to do anything ahead of the 2024 election.

Now, there is another case, Trump versus the United States pending in the Supreme Court concerning presidential immunity, and that is also receiving a lot of attention.

Can you talk a little bit about what what the issue is in that case?

Sure.

So Donald Trump is facing criminal charges in a number of courts around the United States and in particular in the District of Columbia.

He's facing federal prosecution for his role in interfering with the results of the 2020 election and arguing the argument from prosecutors is that he improperly interfered and obstructed government proceedings.

And his argument in the D.C.

Circuit Court of Appeals that heard his challenge from the indictment and the prosecution that's happening was to say, I am immune from prosecution and I'm immune because as the president of the United States, I was engaged in official actions related to my office, and therefore I should not be allowed to be prosecuted.

And so this question of presidential immunity of executive immunity is a sensitive one.

On the one hand, we want the president, I think, to be immune from, say, prosecution in the event that he was engaged in military strikes across the globe or something like that, and his role as commander in chief of the United States.

So there's a notion that there should be some power that the president has that isn't tracked by the ordinary criminal process after he leaves office.

On the other hand, if you're engaged in actions that are outside of what we describe as your ordinary presidential functions, such as, you know, perhaps trying to interfere with the outcome of an election, which seems to be in your political role and not in your presidential role.

Maybe you should be responsive for that.

So that appeal is pending in front of the United States Supreme Court.

They're going to hear that oral argument at the end of April and evaluate whether or not he is subject to prosecution or whether or not there's a class of actions that are protected sort of is inherent in the office of the president.

Now, there is also a question about whether or not the court ruling will matter if Trump is president at the time that decision is announced because as president, he could simply, as some people argue, could just tell the Department of Justice, you're not going to prosecute me, that he could perhaps pardon himself is another theory.

What do you make of all that?

Is he basically have a get out of jail free card or a you may not prosecute me card if he is in the office or is there disagreement about that?

There's a lot of disagreement here.

So I think can he's not in office right now and that's what makes some of the prosecutions a little bit easier.

He's being prosecuted.

The Supreme Court, I think, will issue a decision by the end of June on this issue.

That's when it tends to wrap up its business.

But even then, sending it back, even if it concludes he's not immune, sending it back for prosecution.

You're trying to get this in the thick of a campaign season that's significant for a lot of reasons.

The Department of Justice is often reluctant to prosecute with an eye toward the election, but that's not obviously the case right now, where it is prosecuting with an eye toward the election.

And you know what happens if he wins the election and there's still a prosecution ongoing.

So I think there's going to be a lot of really sensitive timing issues.

And you've identified some of them.

I think there's no question if he's elected, he can tell the Department of Justice to drop these suits.

There's no question that will happen.

If he is convicted.

Can he pardon himself is a very messy constitutional question that has to be addressed.

And, you know, there is a separate issue about states in Georgia and New York.

They are prosecuting him on different matters.

Can you prosecute a president while he's sitting in office?

Know, we have some examples from the Clinton White House where President Clinton, by unanimous Supreme Court, was found that a civil lawsuit could be filed against him for sexual harassment and that would be acceptable in the Supreme Court's eyes.

It wouldn't unduly interfere with his office.

I think it did tend to interfere with his office.

Right.

But when we think about criminal prosecutions, they're different in kind.

So there are a lot of really unsettled questions as we head into the election in the event that he wins about how these criminal proceedings interact with his potential election as president.

Sounds like the courts, to the extent that they take up those constitutional matters, would really be making new case law.

Yeah, I mean, each one of these is novel.

There's nothing there's nothing old about the cases that we're seeing.

We have a little bit of precedent thinking about executive power, executive immunity.

And again, I think the Nixon White House, in the wake of impeachment and the and head of the impeachment and Watergate, and we're talking about the Clinton White House and a lot of the things that came out of the Paula Jones lawsuit and related matters.

Both of those set up some major showdowns about the relationship of the executive with prosecuting authorities or investigate the authorities.

And the Trump White House is very much in the same vein thinking about these cases.

But we've never had a former president being prosecuted like this.

We've never had a serious candidate for office facing these kinds of charges, much less the front runner for the Republican nomination, the de facto nominee, and maybe even the frontrunner for the general election.

You know, we've had marginal candidacies of people who were convicted of felons or even incarcerated.

But it's just hard to think about how these things piece together.

And the Supreme Court is tasked with deciding these very important questions, as it did in the Nixon era and the Clinton era, to think about what it looks like.

But there's no question, once again, it finds itself in the middle of this political thicket where it is going to be establishing new case law and new precedents in a very contentious, contested time.

And it seems that whatever they decide, they will have no shortage of detractors and critics.

Yes.

I mean, I think a reason we wanted a unanimous decision here in Colorado right from the court was that there was going to be consensus around it and that we could look back and say, of course, there was a broad consensus.

We go back to the 2020 election.

There was broad consensus on the Supreme Court, not to accept a number of the challenges that were filed in the aftermath of the 2020 election.

No justice was really interested in taking up questions about the outcome of the 2020 election.

So you've seen those things.

They disappoint, they frustrate a faction or of the United States, but there is at least a consensus and it can't be just reduced to ideological disagreement on the court.

This is a harder case, I think, because what you say about executive power is not just for Trump, right?

It's for the next hundred or 200 years of the office of the presidency.

You know, if we're looking back, still debating how to interpret the precedents from the Nixon White House 50 years later, you know, we're thinking about what that means in the future.

So it's hard for the court to think both about the very long term implications of its decisions with the intense short term scrutiny that it's facing.

Such an important point in this politicized climate that the court has all eyes on it and has to think about its own legitimacy and the possibility of creating a constitutional crisis, it sounds like.

Yes, And I think the political process can handle some things.

Congress can pass legislation, impeachment as a solution, but that only goes so far.

And we expect the courts to do more and more.

And the more we expect courts to do, the more frustrated we're going to be about the results that it reaches when we ask it to reach these decisions.

So it sounds like we'll be hearing a lot more about the immunity case coming up, as well as perhaps some other thorny issues that the Supreme Court will have to decide.

Thank you so much for being here.

We appreciate you sharing your time and your expertise with us.

And that's all the time we have for politically speaking.

So I do want to thank our guests, Derek Muller, professor of law at the University of Notre Dame.

I'm Elizabeth Bennion, reminding you that it takes all of us to make democracy work.

We'll see you next time.

This WNIT Local production has been made possible in part by viewers like you.

Thank you.