This is Bloomberg Law with June Brusso from Bloomberg Radio.
Voters and advocacy groups in more than half the states are fighting to remove former President Donald Trump from state ballots under the disqualification clause of Section three of the fourteenth Amendment, which states that no person shall hold office if they have previously taken an oath as a member of Congress or as an officer of the United States,
and engaged in insurrection or rebellion against the Constitution. But secretaries of state like Minnesota's Steve Simon, say they can enforce the fourteenth Amendment on their own.
The ones who are going to make the legal cause about who engaged in what conduct and whether it rises to the level of constitutional disqualification, that's what a court will do.
But so far courts in Colorado, Michigan, and Minnesota have refused to disqualified Trump. In fact, after a five days trial, Colorado Judge Sarah Wallace found that Trump did engage in insurrection during the January sixth attack on the US Capitol, but said he was not covered by Section three. Here to help explain it all is elections law expert Richard Brofald, a professor at Columbia Law School, Rich tell us about these legal challenges under Section three of the fourteenth Amendment.
So there is a series of challenges of being brought to former President Trump's eligibility to be a candidate for president because of his actions during the course of the January sixth and attack on the Capitol and the real
questions whether or not that is an insurrection. This has to do with a provision of the Fourteenth Amendment that was adopted in the aftermath of the Civil War that was intended to keep former US officials who then joined the Confederacy from being eligible to serve in US office again. It specifically says that for certain people, and one question is who's covered by it engaged in insurrection, that's the
key language. If they engage in insurrection against the Constitution of the United States, they are ineligible to hold certain offices in the United States. And so number of people have argued that former President Trump, because of his activities and inactivities on January sixth, falls within that prohibition of being eligible to be president again. And so this has led to extended academic arguments and now a series of lawsuits. And these lawsuits raise a bunch of questions is what
happened on January sixth and insurrection? Did the President engage in the insurrection by various speeches he gave, in statements he made, and actions he took and didn't take going up to and on January sixth, And another question that turns out to be surprisingly complicated is whether he's one of the people who is prohibited from holding office again, because the language section three of the fourteenth of them and uses is no person shall be a senator or
representative in Congress, or an elector for president to vice president, or hold any office under the United States. And the question that has come up as with the president is somebody who holds an office under the United States. And although it may seem pretty obvious that the president obviously holds an office under the United States, many people have argued that the presidency is distinct and is not simply an office under the United States, but is its own thing.
This Colorado Judge Wallace issued the first legal ruling that concluded that the former president had incited insurrection through his actions on January sixth, and that the First Amendment doesn't protect his actions. But then she went on to find that Section three doesn't cover presidents.
That's correct, that's right. So yes, that's absolutely right. She basically said that what happened on January sixth was an insurrection, which is a violent attack on the government the United States, an official action the United States, which is counting the electoral votes. That President Trump engaged in the insurrection through the speeches he gave in citing the activity and his general build up in the days before January sixth of a sense amongst his supporters that something needs to be
done to block accounting the electoral vote. And yes, the various statements he made, she concluded were not protected by the First Amendment because they were intended to incite violence. But then she concluded that he's not somebody subject to section three of a fourteenth Amendment because Section three the fourteenth Amendment refers to a senator, a representative in Congress, an elector for a president, or any other office civil or military under the United States or under any state.
And the question comes up is whether or not the presidency is an office under the United States. And although intuitively it might seem that presidency of the ultimate office under the United States, she concluded that the the presidency is not, and she gave a couple of reasons for that. One is the way the Amendment is written and kind of written by naming some specific offices and kind of level of seniority for senator than representative, and sort it's
noteworthy it doesn't actually stay president. And then she notes that there are several other provisions in the Constitution that distinguished between the president as a distinctive position and various kinds of offices in civil offices, and so she concluded that the presidency is itself not covered by the Fourteenth Amendment Section three.
Trump's lawyer Scott Goessler, referring to the judge's conclusion that Trump engaged in insurrection, said it was a little bit unusual for her to spend a lot of time talking about that and then at the end rule that the Fourteenth Amendment didn't apply.
It is interesting the opinion is one hundred and two pages long, and some of that is just there of procedural stuff, but she doesn't actually get to this question whether or not the presidency is an office under the United States or in office covered by section three of the Fourteenth Amendment until about page ninety five of this one hundred and two page opinion. So it does seem a bit odd. I guess you could say that obviously she's not the final say she is just the lower
court judge. It's going to go up through the Colorado court system and maybe ultimately to the US Supreme Court. And so maybe in defense of what she did is she basically says, well, if you reverse me on the question of whether or not the presidency is an office covered by this, I've made findings on everything else that's relevant. Because other people have argued either that January sixth didn't
rise at the level of an insurrection. It was a riot but not as serious an insurrection, or that President Trump didn't engage in the insurrection, that all he did was give speeches by make statements, but he didn't actually engage in the insurrection. So she basically said, you know, in some sense, if you look at the text of the amendment, it really requires thinks that there be an insurrection, that the person had to be engaged in it, and
that it applied to the presidency. And so she has made rulings that it was an insurrection and that he did engage in it, but that the Fourteenth Amendment doesn't apply to him. So conceivably a higher court, an appeals court, or the Colorado Supreme Court or the US Supreme Court could conclude that the presidency is covered, in which case they'd have her findings on the other two issues.
All the cases, you know, trying to get him off the ballot via the fourteenth Amendment, have they all failed?
They're all at the early stages that maybe it's more accurate to say none has succeeded. Okay, but they're all at fairly early stages. I mean, the elections coming up soon, and right now the only real question is is being on the primary ballot. And some people have argued, well, the primary is premature. It's really on about the general election. But yeah, there are there are challenges percolating in a
number of states. Certainly, nothing has succeeded yet, but I don't think there's has been a definitive ruling by the highest court of any state yet either.
And does this seem like something the Supreme Court should take up.
It's obviously an incredibly important question at the moment, given the lack of any law on this. You know, some great usually only comes in after there's been a you know, a final lower court judgment, and especially if there's been some disagreement, this is something that they might want to settle.
I mean, I think the real anxiety that many people have is what happens when let's say Trump wins, but members of Congress don't think that they should certify his election because there's some members of Congress think that he violated the fourteenth Amendment. And what happens if this becomes an issue. January sixth to twenty twenty five.
Coming up next on the Bloomberg Lawn Show, I'll continue this conversation with Columbia Law School professor Richard Brofault, and we'll talk about the Eighth Circuit Startling decision that would be a death blow to the Voting Rights Act. I'm June Grosso and you're listening to Bloomberg. One of the most important pieces of civil rights legislation in our history, the Voting Rights Act, was signed into law in August of nineteen sixty five by President Lyndon Johnson.
Today is a triumph for freedom, as huge as any victory that's ever been won on any battle field.
But the Supreme Court gotted a core part of that landmark law in twenty thirteen and now are ruling by the Eighth Circuit Court of Appeals threatens to deal a death blow to the Act. I've been talking to Columbia Law School professor Richard breflt Rich. Would you say the Voting Rights Act is the most important piece of federal legislation protecting voting rights today?
Oh? Yes, a Voting Rights Act of nineteen sixty five, as it meant in nineteen eighty two is the number one federal statute protecting voting rights.
And tell us what happened in twenty thirteen and what's left of the Act before we get to what's happened to it recently.
So the Voting Rights Act of sixty five has significally mind in eighty two had many preditions, but two of
them really stood out. One was what's called Section five, which had this concept of preclearance, and it basically said that for certain problem jurisdictions of jurisdictions which have a serious track record of violating voting rights, as proven by certain tests in the statute, when they change their voting laws, that has to be pre approved, pre cleared, as the language the statue uses, either by the Department of Justice or by a federal court before they it comes into effect,
and it kind of reverses the presumption. It says for those problem jurisdictions, they have to prove that their new law or their new change in voting practice or procedure does not burden minority voting rights. So the burden is actually on the state of the local government to show that they're not clicting any harm. In twenty thirteen, the Supreme Court struck down the part of the statute that provided the definition of the jurisdictions that were subject to
this special treatment. They were called cover jurisdictions, and the Court said that Congress basically had failed to update the formula that decides what a cover jurisdiction is. It was last updated in the nineteen seventies, and the Court said it simply cannot be right that that's the right formula now in a statute which the substance of the statute was as most recently updated in two thousand and six.
So what the Court said in twenty thirteen is that provision, that preclearance provision, it is technically still on the books, but it has nothing to operate on because the provision that it works with which is the definition of the cover jurisdictions is invalid. So with that decision in twenty thirteen, the Supreme Court eliminated clearance to Clarence is technically on
the books, but there's nothing for it to do. The other major provision of the Act is called Section two, and that's the one that basically is used to challenge voting rules around the country which are either intentionally discriminatory or have a discriminatory impact. And really for the parts of the country that were never under Section five, section two is where the action was, and since twenty thirteen now is for all of the country. Section two is
where the action is. Now. In Section two, the burden is on a plaintiff to show that a state or local law is discriminatory, either in intent or in effect against We're protected by the Act, which are primarily based on race or language minority status. But nonetheless Section two has been particularly after the twenty thirteen decision that's known as Shelby County. Section two is clearly the major, by far, the major provision of the Act for enforcing voting rights.
Now, I would say, out of the blue, a two to one ruling of the Eighth Circuit by a Trump appointee and a George W. Bush appointe with another Bush appoint in descent says that only the federal government can bring suits to vindicate voting rights under Section two.
Right where did this come from?
So their argument is that Section two, which makes all sorts of voting practices and procedures illegal, doesn't explicitly say that people who are injured by these practices and procedures have a right to bring a lawsuit what's known as a private right of action. The statute prohibits that basically declares that various kinds of voting practices and procedures which are discriminatory are illegal, but it doesn't explicitly literally say
that people who are injured by that can bring a lawsuit. Now, since the time of the enactment of this statute, especially since it was beefed up. The statute was actually significantly beaced up by Congress in reaction to a Supreme Court decision in nineteen eighty two, this statue has been used for private claims. I don't know it's hundreds of times, which have been adjudicated by courts, including by the Supreme Court as recently as earlier this year, the Allen b.
Milligan decision. So it has been used many, many, many, many times. But according to the Eighth Circuit majority, the Supreme Court has never literally said that there's a private right of action. They've just assumed it. And in that Allen case, Justice Thomas in his descent also raised this as a question about whether or not there really is a private right of action. So I think he in that case in some earlier cases, may have planted the
seeds of doubt. But as I say, until now, I think there have been hundreds of cases in the district courts and the courts of appeals which have assumed that there's a private right of action, and even at least a number of cases, and it's probably, I'm not sure if it's single digits or double digits of cases in the Supreme Court which have assumed a private right of action. And this is the first case that has literally said, no,
we don't think it's there. And the fact that there have been these many, many, many cases assuming that it's there, we don't care about those because nobody ever literally worked it through and held that there's a private right of action.
And Justice Gorsich has also referred to whether private plaintiffs could sue under section two as quote an open question. Wendy Wiser of the Brendan Center for Justice has called these comments by the two justices bats signals that they're open to considering novel theories to undermine voting rights. And maybe the lower court judge, a Trump appointee, who came
up with this, got the signal. Now, are these judges claiming that they're following precedent because this wasn't specifically addressed, even though you know there's case after case after case after case where private groups sue.
Right, I think I would rephrase that to say they claim that they're following the text of the statute, the text of the statute and nothing more, and that they're not bound by any inconsistent precedent because there's no precedent that literally says the statute does create a private right of action. So I think that's how they would put it. This is consistent with kind of the dominant approach to statue interpretation in the current Supreme Court in federal courts,
which is what's called textualism. We're just going to read the statute and see what's there and they don't see this literal language there as opposed to seeing that the structure of the statute. It's the purpose of the statue was designed to enable people to protect their voiding rights. Their view, there is not a specific little bit of text that says it.
It seems like a very very narrow argument that ignores everything going around.
Yeah, it's a very technical or argument, but it is an argument that I'd say resonates with some of the arguments that have that have really persuaded the Streme Court in other areas not voting rights. This idea of the private right of actions that I mean this has come up in other settings where Congress passes a law that prohibits certain activity or provides for certain benefits, but doesn't literally give people the right to sue if those are denied.
Maybe theerception is that the Attorney general will sue or that rel agency will sue. And for a long time, the Supreme Court was willing to imply private rights of actions as necessary to vindicate the rights provide the benefits that Congress authorized. In more recent years, the Supreme Court has cut back on that and has been less inclined to find a private right of action in a statute that doesn't literally say that.
Now, if this decision is affirmed, it would leave it to the Justice Department or state agees to bring these cases. And in Republican states, it doesn't seem likely that an age would bring an action to enforce the Voting Rights Act. So does the Justice Department have enough people and resources to bring these kinds of actions?
Right? I mean, it's not clear that the Just Department would have enough staff to bring it. And then there might be justice departments that are not interested, that their philosophy is not inclined to bring these cases. I can imagine that happening too. So, yeah, this is a real This is a real body blow to any effectiveness of the Voting Rights Act. If people can't sue if they believe that there's a violation, the opportunities to enforce these rights will be drastically diminished.
What's the next step for the plaintiffs here?
It's certainly likely that the plaintiffs in this case will ask for what's called an on bank, which is to say this was a panel of the Eighth Circuit. You know, the course of appeals generally have a dozen or fifteen or more judges, but they sit in groups of three, and so this was a group of three judges from the Eighth Circuit to split two to one on this.
This is a kind of issue that certainly is likely or certainly is a great candidate to go to an on bank decision where the entire Eight Circuit sits and decides. This is a certainly sort of issue that go to the Supreme Court ultimately, but I think before it even gets to the Supreme Court, there's a good chance that it'll be subject to an on bank reviewed by the entire Rate Circuit.
And the Eighth Circuit is a very conservative circuit, with sixteen of its seventeen judges being Republican appointees. Thanks so much, rich That's Professor Richard Rafault of Columbia Law School coming up next. Federal public defenders are combining their forces to make arguments at the Supreme Court. I'm Juan Grass when you're listening to Bloomberg, mis Radler.
Mister Chief Justice, and may please the Court. The nine to twenty two g offense is what triggers Acus penalties. The government therefore agrees that courts must apply Acus criteria in effect at the time of the nine to twenty two g offense not the prior conviction.
Assistant Federal public defender Andrew Adler made his third trip to the U. S. Supreme Court lectern on Monday to argue that his client, Eugene Jackson, should not be subject to a fifteen year mandatory minimum because of his previous state cocaine related conviction. Adler is just one of the federal public defenders who have argued more than once before
the justices. That's because with the Supreme Court hearing fewer and fewer cases each term, the criminal defense attorneys, like most first time Supreme Court advocates, face a lot of pressure from elite law firms to turn over their cases to advocates who are more experienced before the court. Joining me is Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson,
who's written about this. Tell us about the pressure that federal public defenders and other first time advocates have to turn their Supreme Court cases over to experienced advocates.
Well, it's not a very good kept secret that whenever a case is granted by the Justices, the advocate, if they're not a sume Court veteran will face intense pressure. You know, they'll get calls, emails from large law firms from gootis veterans offering to take their case for free to help them out. But the help often means to
argue the case. And so it's one way that you know, as the justices are granting and fewer cases, it's one way for advocates to you know, show their faces and for the justices frequently, and it's one that sometimes gets a lot of people to turn over their cases. But the federal defenders have tried to keep their cases when it makes sense within the offices themselves.
There's even been criticism from some justices.
You wrote about Justice Sonya Sotomayor in twenty fourteen said it was malpractice for any lawyer who thinks, this is my one shot before the Supreme Court and I have to take it. Have other justices commented as well.
Yes, there was similar criticism from Justice Kagan around the same time, where she talked about, you know, the one group consistently who is getting or advocacy in front of the justices were criminal defendants, and that of course includes federal public defenders. She talked about the same thing that people wanting to have their one shot in front of
the Supreme Court. And we've seen a lot of first time advocates, a lot of advocates of these criminal cases who do not do, you know, the best job for their clients. But that's not always the case. And again, you know, that's something that the federal defenders are trying to make sure it doesn't happen in their cases.
And the Supreme Court bar is an elite group? Is it an elitist group too?
Well, that's what you know, one of the federal defenders told me, is that there is a bit of elitism that goes on this idea that you know, only people can do this. I mean, you know, these federal defenders, they are appellate specialists, they are criminal specialists. They argue in from a lot of the other courts of appeals, so it's not as if they don't have experience. But one thing that they do often have is a real clear understanding of the criminal law and the way that
happens practically. And we actually saw that in action when a federal defender took the lectern this week and argued a case he was able to give the justice. This is really a practical on the ground look about you know what it is that criminal defense attorneys advise their clients of and what sort of those interactions look like something that you know, a Supreme Court veteran, for all the wonderful things they can do, probably couldn't do.
That was that Andrew Adler.
That was yes. And this was actually his third time at the Supreme Court lecturn. So he's one of a few federal defenders that have gone to the Supreme Court and argued more than one.
Yeah, and a few people mentioned that right off the bat he presented this hypothetical to the justices that really grab them.
It did, and so you know, it was in his opening two minutes the Supreme Court. It doesn't sound like a long time, but the Supreme Court has said they're going to give advocates an uninterrupted two minutes, and it's kind of when the advocates can make their best arguments without getting interrupted. And in that two minutes he mentioned the specific hypothetical, and it came up again and again and again from the justices. They asked the other attorney
about it. So he was really making good use of that first two minutes of uninterrupted time and you know, ultimately, I think it'll probably will be the way that the case goes and could end up in the opinions.
And we will talk about that in a moment.
So, Kimberly, do you think that there's an advantage? There are some advocates that have been up there so many times. The justices know them and perhaps know them even because you know, they attend functions with them and things like that.
I mean, do you think that's an advantage when.
The Supreme Court knows who you are, like for example, former solicitor generals.
You know, it can be. I think one of the things that people tell me it's the biggest advantage of you know, those repeat players at the Supreme Court is that they know what the justices are looking for. They know that you know, when a justice gives you a hypothetical, you don't fight the hypothetical. You answer their question no matter how ridiculous it is, no matter how much it hurst your argument, and you just sort of do the best you can. And so it's sort of like having
a home field advantage. There's the way that one advocate put it to me is that you you just know what to expect from them and know what's going to be the most helpful to them.
Tell us about the Defender Supreme Court Resource and Assistance Panel.
What is it doing.
So this is probably the the worst acronym name is called d scrap, But d scrap is really just a group of federal defenders that do have some high court experience.
You know.
It started out very informally, but after some of the criticism that we talked about, you know, from the justices, federal defenders from around the couindes sort of said, Okay, we need to do something about this. We need to make sure that we aren't you know, these people who the justices that are talking about giving poor advocacy, and so, you know, what they do is, to varying degrees, they will reach out to the person whose case got granted.
They will help with strategizing a bit, they'll help with brief writing, they'll do moot courts and just sort of give advice to help them alleviate that home field advantage and let them know what it is that the justices expect. And so it's it's sort of like a homegrown support group. But if Andrew Adler's argument is any indication, it seems to be doing a really good job.
You point out something which I hadn't thought about that it seems often like a David and Goliath situation because the federal public defenders are almost always facing attorneys from the Solicitor General's Office who get a lot of chances to argue they do.
I mean, you know these are people. You know, there are maybe three or four people who currently argue at the Court who have argued more than one hundred cases, all of them spent time in the Solicitor General's office, because that's the place you go if you want to get a lot of experience with Supreme Court advocacy. You know, they can argue to three four cases in a term each individual attorney in that office, whereas you know, some advocates who are we consider veterans can go years without
having a case before the Supreme Court. So it really is a lot like David Goliath in that sense.
I know there are a lot of Supreme Court clinics at law schools around the country. Do any other clinics offer the same kind of help to federal public defenders?
They do? And actually, you know Dscrap hooks up with a lot of these clinics, so you know, the case that we've been talking about, they hooked up with the Supreme Court Clinic out in Stanford, a lot of law firms to will office support. Sidley Austin, who actually argued the companion case to this case that we're talking about, often, you know, is involved with the scrap and federal defenders, so they get a lot of support from the outside
as well. And you know, I think it's it's really about finding people who are willing to help you out, but not mean help, means take the argument away. So there is that outside help too.
Yeah, I'm going to say the d scrap is for scrappy defense lawyers.
That's what it stands for.
Let's talk about the case that Andrew Adler argued in. And you know, the cases involving the Arm Career Criminal Act always seem to be so technical that I often.
Ignore them, but they're important. Tell us about this one. What the issue was?
Sure, So the Arm Career Criminal Act, you know, has some really stiff senses for people who illegally possess a gun. So I think Sellen or somebody who is convicted of major, you know, drug crimes, and that's actually what's at issue here. Is that you know, if you are convicted of three quote, serious drug crimes and then you're convicted of illegally possessing a firearm under AKA, there's a fifteen year mandatory minimum,
which is I mean, that's a lot. And so the question here is how do we decide who's eligible for that fifteen year minimum. And it's really a question a temporal question, you know, is the relevant time period that we're trying to see if these crimes are serious? Is it when those crimes were committed or is it now today as we're deciding your firearms case. So it is really a technical question, but at a very high level of generality that's that is too.
And so the Justice has had basically three choices.
They did, and you know, just to make it even more convoluted, all three of these choices are being employed to some extent in the lower Federal Pellet Court. So that's probably one of the major reasons that the court
took this case was just to provide some clarity. But the different times it can either be, you know, do we look to see if this crime was serious when the drug crime occurred, or do we look to see if the crime is serious when the firearms conviction occurred, or do we look to see if the drug crime
was serious at the time of the sentence thing? And as I said, all of those rules are sort of being employed, you know, throughout the country, and so the Supreme Court is going to have to pick one, and it really seems like they're not going to side with the government who was arguing for you know, the most backward facing that is looking at whether or not this was serious when the person committed the drug crime.
And so it seems like they're not going to go for the most serious or the least, They're going to go in the middle.
Is that the point that Adler was arguing.
That was so you know, him and another attorney were sort of arguing on the same side, but for different standards. It looks like that's it is going to win. But which standard they choose, you know, it's probably going to
be something that Justice has sort out in conference. One thing I thought was really interesting about the argument that Justice course has pointed out is that none of those rules are necessarily better for criminal defendants, because you know, the laws can change either favorably to defendants or they
could change unfavorably to them. So you know, it's not as if one rule is better for criminal defendants as a whole, and as just as Cource has put it, you just kind of have to take the bidder with the suite.
Is there a reason why the Arm Career Criminal Act comes up?
There are so many issues about it.
Yeah, the on Career Criminal Act, I mean every term we have, you know, several cases about it. The Supreme Court, you know, several years ago. Eventually it just kind of threw up its hand and said, look, this is so vague. We don't know what it means. It's just it's it's unconstitutional to a major part of the Act. You know, it's a really serious act. And you and I are talking right now about a case for their mandatory minimum
of fifteen years. That's a lot of time and so got a lot of skin in the game to you know, bring these cases up to the Supreme Court. But you know, another thing that's changing is really the way that we view drug crimes and the you know, changes to federal
and state drug laws are changing pretty rapidly. The Congress a couple of years past the bipartisan First Step Act, which changed a lot of the you know, these drunk crimes, and so a lot of that is tied into the Arm Career Criminal Act, which is about firearms but sort of touches on every bit of criminal law, particularly drug crimes. So I think that's why it's coming up, and I don't expect it to end anytime soon.
Do you think that the you know, the Supreme Court's recent expansion of the Second Amendment has an effect on this or not at this point.
Well, you know, that's sort of in the background of this case is the Arm Career Criminal Act really does deal a lot with individuals who can't possess the firearm because they're a felon, and the Supreme Court the case that they just heard Rahimi really sort of brought up a lot of these issues that the justices are having. Is is that, you know, the idea of incapacitating or taking away guns from these people is that they're dangerous.
But if your fellow is for something like you know, wire fraud, or your felony is something that's not violent, is it really constitutional to take their guns away? You know, that's their Second Amendment right, And so you know, this is very much in the background of these cases. But it wasn't mentioned at all during arguments.
Kimberly, I really enjoyed your story about the federal public defenders because we rarely hear about them and they don't get enough credit. Thanks so much. That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg