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Oral arguments now in Trump versus Anderson. This is the ballot access case, not to be confused with the one about presidential immunity. We're waiting to hear likely from the Supreme Court on that as well, But what we haven't gotten that far yet today is about primary ballot access after he was removed from the ballot by the Colorado Supreme Court.
This brings us back to December.
This is a case involving the fourteenth Amendment and it has to do with whether Donald Trump actually engaged in and that's the appropriate term to use here, insurrection. Dave Ehrenberg's got his eyes on this from his perch in Florida. The Palm Beach County State Attorney is with us now, and David, it's great to see you.
It's been a minute.
I wonder if you can just first before we analyze all of this, and we don't need to re litigate what happened on January sixth. I want to understand what are the questions that the justices are trying to ask here, whether, in fact, beginning with the big one, whether in fact Donald Trump engaged in insurrection.
How do you answer that question?
Well, Joe, good to be with you.
As expected, the justices are largely avoiding that question. Instead, they're dealing with larger constitutional issues, such as, did the framers in ten that states would go ahead and do this on their own? Or would Congress have to pass
a law? Is the fourteenth Amendment self executing? And although I think in the end they will probably say that the fourteenth Amendment is self executing, meaning you don't need Congress to make it happen, there is still section five of the fourteenth Amendment which says that Congress shall enforce this section. So what I think the Court's going to do is they're going to punt and they're going to say, hey, Congress, do your job. Pass some uniform law so we don't
have fifty different states going in fifty different directions. Because even the liberal justices were worried that Colorado as one state, could decide the election for the whole country, and they didn't want mass chaos so I think, to me, the only question I have is whether this will be a unanimous nine zero opinion that overturns the Colorado Supreme Court case, or will it be eight to one with Justice Soda Mayor of dissenting, Because it seems like even the liberal justices,
with the exception of possibly Soda Mayor, are going to go along with the majority of the conservatives on this one.
Interesting. This is.
A pretty interesting moment for this court. And I know that at least the conventional wisdom is they want to be very careful here. Was the fourteenth Amendment really just about the Civil War, Dave, Because a lot of people seem to think so.
Well, it's about preventing insurrectionists from getting into power again.
I mean, it was.
Written in response to the Civil War, and it was not meant just pertain to that. This was meant to pertain to any traders in government. They didn't want any future insurrectionists, any traders to be elected to office, people who were in office at the time of an insurrection and then later tried to stay in office.
They didn't want those folks.
Now, one question, one issue that Trump's lawyers are making is that they want him to be exempt from the Fourteenth Amendment because they like to say that the Fourteenth Amendment at section three does not include the president. So what they're trying to say is that the framers of the amendment were so worried about having insurrectionists lead the way in our government except for being president. Like they could be senators, they can be. They don't want them
to be senators, they don't want to be congressmen. But it's okay or an insurrections to be the president. That defies common sense. So I think that argument is a loser for Trump's side. I think ultimately, though, the Supreme Court is going to say, come on, we can't have fifty different states going in fifty different directions. This would be mass chaos. Let Congress establish some uniform set of rules here.
If the Court David has to consider whether Donald Trump engaged in an insurrection, it also has to establish whether January sixth was an insurrection.
Right, they don't actually have to go into whether Trump engage in insurrection. That would be an embarrassing review because look, all the justices in Colorado, even the one trial court judge that ruled for Trump, all agree that he engaged in insurrection. The Supreme Court is not going to tackle that. They're going to avoid it, and they're just going to do with conscertional issues because if they did deal with it, it would get really messy, and they don't have to.
They don't like to get their hands dirty where they don't have to. One thing I must add, Joe is that I'm a little disturbed that Justice Clarence Thomas not only is sitting on the bench for this case despite what seems to me having a conflict because his wife was part of the whole surrection attempt, but he also asked the very first question from the bench, and so it just shows you why so many people have a low estimation of the High Court.
Dick Durbin had called on him the share of the Judiciary Committee in the Senate, to do that very thing and recuse himself by Monday. Dave Ehrenberg, Donald Trump is also expected and it could come before then to ask the Supreme Court to rule on this immunity claim.
Where do you see that going?
Well, yeah, I think he's going to lose there. But the question is how long will the Supreme Court take to act?
Now?
They could just accept the review or accept the petition and then deny the review, and hopefully that'll happen because that will speed things up and then we can get to the trial before the election. On the other hand, they could sit on it and they could review it, and they could make it impossible to try this case before the election.
It's all in the hands of the Supreme Court.
My best guess is that they don't want to wait into this one much either, especially because the DC Circuit Court of Appeals issued a very comprehensive, very strong opinion that I think the Supreme Court is just.
Going to defer to.
And when that happens, because I think it's a when, I think, then it's game on in DC and Judge Chuckkin is going to move forward with that trial or election interference, perhaps sometime in the late spring.
So what's the most likely scenario then, as you just outline, the Supreme Court decides to not take up the case and just just let it lie where it is in the appeals court, or they in fact uphold that ruling.
Is there a difference, yes, One is whether they take it up, which is called cerciori or cert. Well, they grant cert you need four judge justices to grant cert out of the nine. I don't think they're going to grant it because of the strength of the lower court ruling, but they could, and then if they do, then there'll be a built in stay and then we wait for an opinion on the merits, and that would take a
lot longer. So a lot depends not necessarily how they will rule, because I don't think there's a chance in the world they're going to give a president absolute immunity like Trump is seeking.
But Trump's strategy really is delayed, delayed, delay.
And if they grant cert and they take a long time to review and make a decision, then Trump will win by losing.
Wow, do you have timeline in mind?
I know you must hate being asked that, because nobody knows what the heck The Supreme Court is going to do.
It can do whatever it wants, but will it be.
Compelled to rule quickly on both of these Fourteenth amendments and presidential immunity.
Yes, they see what's going on, just like the rest of us.
They know how important this is to get this done before the election, and I think they want to. I mean, Chief Justice Roberts cares so deeply about the legitimacy of the court. He wants people to buy into the court as an a political institution. But if they sit on their hands and delay this thing so that he cannot be tried until after the election, they will look very political. So I think the Chief Justice is going to make
sure this happens sooner than later. And I do believe that the two cases and only two cases involving Trump that will be heard before the election will be the DC case in front Judge chuck In. I think that's the most powerful of the two cases. And then the second case, I think the New York case involving the Stormy Daniels hush money payments, will be heard before the election.
The other two criminal cases, the mar Lago documents case, which I do believe is the strongest of all the cases, that's got Judge Cannon, and she's slow walking that case. That's not going to be heard before the election. And the Fulton County case, with all the issues with Fannie Willis and conflicts and all the complex rico issues, that's not going to be heard before the election either.
Amazing. I don't know how you do that off the top of your head.
Still great, insights from Dave Ehrenberg let us know when you're back in the capitol. Palm Beach County State Attorney with this year on balance of power