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CNN Live Event/Special

J. Michael Luttig and Jeff Rosen are Interviewed about the Supreme Court Case; Biden's View on Trump Ballot Ban; Political Stakes of Supreme Court Decision; Jim Schultz and George Conway are Interviewed about the Supreme Court Case; Jena Griswold is Interviewed about the Supreme Court Case. Aired 9:30-10a ET

Aired February 08, 2024 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:30:00]

J. MICHAEL LUTTIG, RETIRED FEDERAL JUDGE: Amendment is the safety net, the Constitution's safety net for American democracy. It is as if the framers of the 14th Amendment foresaw January 6, 2021, and they provided in Section 3 for America that it would never witness again another January 6th.

The -- Section 3 is -- disqualifies one quintessentially for the kind of insurrection against the Constitution of the United States that the former president engaged in, in particular. When he attempted to remain in power, beyond his constitutionally prescribed four-year term, and attempted thereby also to deny President Joe Biden the powers of the presidency to which he was lawfully entitled because he had been elected by the American people, all preventing the peaceful transfer of power for the first time in American history, the former president engaged in the quintessential insurrection against the Constitution of the United States that Section 3 contemplates.

So, the question is not so much whether the former president engaged in or -- an insurrection against the United States or the authority of the United States, but rather did he engage in an insurrection against the Constitution of the United States?

The - the disqualification clause, Jake, is not anti-democratic as so many people have said. Rather, the Constitution itself tells us that the anti-democratic behavior is the conduct that gives rise to disqualification. In this instance, an insurrection against the Constitution of the United States.

JAKE TAPPER, CNN ANCHOR: Jeffrey, a lot of people expect that the justices on the U.S. Supreme Court will be looking for an off ramp to try to avoid this question entirely. For example, saying that Congress needs to ask first, or arguing that the president isn't included under the 14th Amendment because he isn't expressly mentioned. In your view, is there a way to do that?

JEFF ROSEN, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: As you say, there are off ramps, and you mentioned two of them. The first one is that the justices might hold that the president of the United States is not an officer of the United States under Section 3. The second off ramp is they might hold that Congress has to enforce Section 3, that states and courts can't enforce it on their own. The third is they might hold that January 6th was not an insurrection. Or they could hold that President Trump didn't engage in it, that his speech was somehow protected under the First Amendment.

It's such a complicated mix of constitutional pragmatic and political considerations. Remember, Bush v. Gore ended up being decided on grounds that were completely different than the ones that it was originally argued on. So, literally, anything could happen.

As viewers listen to these historic arguments today, listen to all those off ramps. See - see which justices are interested in which arguments in particular. And we'll see at the end of this morning whether any consensus seems to be converging or whether we're just going to have to wait until the court's decision.

TAPPER: Judge Luttig, as a judge yourself, you have embraced textualism and originalism. That's a philosophy that you share with several of the conservative justices on the U.S. Supreme Court. Is there a way to be a textualist and an originalist and still find that Donald Trump is eligible to be on the ballot in 2024?

LUTTIG: I do not believe there is, Jake. The original comprehensive study of Section 3 of the 14th Amendment was done by two conservative professors. Professors Bode (ph) and Michael Paulson (ph). That comprehensive study and research was done under originalism theories interpretation of the Constitution. And those two professors concluded that under an originalist interpretation of Section 3 of the 14th Amendment, the former president is disqualified.

[09:34:59]

Now, I would hasten to add that even if one were not to interpret the Constitution as an originalist, then as a textualist only, it's also pristine clear that the former president is disqualified under Section 3 for having engaged in the insurrection against the Constitution of the United States.

TAPPER: All right, thanks to both of you. Appreciate your time and your expertise.

Coming up, the huge political stakes for Donald Trump, and for Joe Biden for that matter, as we count down to the start of this historic U.S. Supreme Court hearing on efforts to disqualify Donald Trump from the ballots.

We'll be right back.

(COMMERCIAL BREAK)

[09:40:05]

TAPPER: We are awaiting the start of the U.S. Supreme Court hearing, a momentous one, that could directly impact a presidential election in a way we have not seen since Bush v. Gore nearly 25 years ago. This time it is Donald Trump's candidacy that's on the line. You're going to hear the oral arguments in real time coming up just minutes from now.

President Biden has an obvious stake in what happens at the U.S. Supreme Court today. So, let's check in at the White House with Arlette Saenz.

Arlette, how do President Biden and his team view this Trump ballot challenge at the court?

ARLETTE SAENZ, CNN WHITE HOUSE CORRESPONDENT: Well, Jake, President Biden recently told reporters that he's fine with former President Donald Trump staying on the ballot. In the end, the president believes that this is a decision that will be made by the court system.

But what we've seen from the White House and this campaign is really them adopting this stay silent strategy. They tried to avoid commenting on the legal issues facing the former president for fear of giving any perception of political interference.

But what the campaign is focused on today is charging ahead with their plans to take on Trump in the general election. We have heard from President Biden this week trying to really turn this race into a referendum on Trump, painting him as the one existential threat facing this country. The president has also leaned in to highlighting the Republican dysfunction on Capitol Hill to highlight the way that the party still has a strict adherence to Trump's will.

And the president, of course, will be keeping tabs on this as it's unfolding today. But for the most part, the team has steered clear of trying to weigh in on these issues due to trying to avoid any appearance of political interference.

TAPPER: All right, Arlette Saenz at the White House for us, thanks so much. Appreciate it.

Let's talk more about the stakes for the 2024 election, first with some political commentators and then we're going to talk to some lawyers.

Let's start with the political commentators. CNN's Van Jones and Scott Jennings.

Van, let me start with you.

The biggest case before the Supreme Court, U.S. Supreme Court, since Bush v. Gore in 2000. Who is at stake politically with this case?

VAN JONES, CNN SENIOR POLITICAL COMMENTATOR: Well, listen, I think beyond just, you know, a Joe Biden and Donald Trump, what's at stake is the validity of our constitutional system. People -- all morning I've been banging my head against the table talking about democracy. We have a constitutional democracy because the framers recognized that crazy people can be popular. Bad people can be popular. So, our Constitution says, certain people can't serve.

People love AOC in my party. She's 34 years old. No matter how much the democracy wants her to be president, she's too young. People love Harry Styles. People love Paul McCartney. People love Arnold Schwarzenegger. They're popular, but the Constitution says they're not natural born citizens. You cannot be president.

And the framers of these amendments understood traitors can be popular. People who took an oath and threw it in the garbage can be popular, but you can't be president. So we're in -- we're facing a situation now where a big part of our Constitution could become a dead letter because people are afraid to put -- to do what the Constitution says, which is to say, this guy is no longer eligible.

And so the politics now, not just for a Biden or a Trump, but for the ability of this country is on the line today.

TAPPER: Scott, what does it mean for the Republican Party if the U.S. Supreme Court were to rule that, no, Trump is not eligible to be on the ballot?

SCOTT JENNINGS: Well, I mean, it would be like the end of the original "Ghostbusters" movie, but in every state capitol, in every county clerk's office in America. I mean I think the Republican Party would candidly ignore it. I think they would try to nominate him anyway. And I think Republican-run states would try to put him on the ballot anywhere. And I think there'd be massive write-in campaigns to elect him anywhere in places where he wasn't on the ballot. And, of course, I don't have to tell you what kind of crisis that would create in terms of counting votes and sending up electors and so on and so forth.

So, I think the political reality is, is that taking him off the ballot would cause a meltdown in this country that it would be hard for us to even describe what would occur in the aftermath. I don't think they are going to do that, but I don't think the Republicans are interested in the Supreme Court telling them who they can and can't nominate. And I think a crisis would, frankly, ensue at the highest levels of this party.

TAPPER: Appreciate the relevant pop culture reference with the first "Ghostbusters" movie, as if we weren't dating ourselves with the Bush v. Gore references.

Van, Trump's legal team, in a brief filed on Monday, said, quote, "he is the presumptive Republican nominee and the leading candidate for president of the United States. The American people, not courts or election officials, should choose the next president of the United States," unquote. So, Trump's team is arguing there that democracy depends on him being on the ballot so the American people can make the decision, not judges. What's your response to that?

JONES: Well, and that's what I was trying to talk about. We have a constitutional democracy. Certain people are not eligible to be president. They're too young. They weren't born here. They're traitors. And that's really what's at the stake.

[09:45:00]

And, by the way, can we just be honest here. If Barack Obama had sent 10,000 Black Lives Matter protesters to destroy a session -- a joint session of Congress, he wouldn't be in jail, he'd be at Guantanamo and nobody would be talking about him being president. If Rashida Tlaib sent 10,000 Muslims to tear up Congress, (INAUDIBLE) joint session of Congress, she would be at Guantanamo and nobody would even blink to say she's not qualified to be president.

There's something crazy going on when we act like something that happened didn't happen and has no relevance to what's going on today. If there's ever been a president who took the oath of office and threw it in the garbage can, it was Donald Trump, in the middle of that insurrection.

If you're going to say - if you're going to say you're a constitutional conservative, then show it today and stick up for the Constitution.

TAPPER: All right, Scott, you want to get -- you want to react to that?

JENNINGS: Well, I mean, he wasn't charged with insurrection. I mean, that - at the end of the day, the fact that Jack Smith, who investigated this, did not charge him with insurrection to me has always been the strongest argument about why they shouldn't throw him off the ballot because of insurrection.

TAPPER: All right. Appreciate it. Thanks so much, Van and Scott.

Now to two opposing views on the legal merits of the Trump ballot ban, conservative lawyer George Conway is back with us, along with Jim Schultz, a former associate and White House counsel under President Trump.

Jim, let me start with you.

What do you think is Trump's strongest argument today on why he should not be disqualified?

JIM SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: So, there are going to be three arguments that are going to be made that I think that - one is straight up that he is - he does not - it doesn't apply to the president of the United States. The argument there is that there are certain folks that are enumerated. And even when they were debating this, when this was passed, they actually had president and vice president in the legislation, and they took it out.

And typically when you -- when legislation is passed like this and you enumerate certain offices, the top office holder is first. Here, they started with the Senate, they went to the House, they went to the presidential electors, they went to the state officials. They walked all the way down the line and then they used -- and they used the catch-all phrase in between. The question is, does the president fit into the catch-all phrase. And the argument there is, no, he doesn't. He doesn't fit into that catch-all phrase. I think that - you're going to hear that today, number one.

TAPPER: Well, let me - let me -- let just break this down to make it easily digestible for - for our viewers. Let's come back to you.

Respond to that, if you would.

GEORGE CONWAY, CONSERVATIVE LAWYER: Well, the answer is that there's a lot of history that shows that people understood the president of the United States to be an officer of the United States, and especially around the time of reconstruction. And the answer to the question of, why do you take out president and vice president, the reason why you take it out is because it's unnecessary, because they are both officers of the United States. So, once you've got them covered by officers, it doesn't matter. And then you have people -- when they refer to members of Congress, well, that's a little different because they're not considered to be officers of the United States.

So, there's a perfectly good reason. And, in fact, there's also a -- there's a discussion I think on the floor of one of the houses of Congress about, well, doesn't this apply to the president? And the answer is, oh, yes, it is, he's an officer of the United States And it would be really, really bizarre to apply this provision to everybody except the person charged with executing the laws.

TAPPER: OK.

Point two.

SCHULTZ: So, point two, you're going to -- it's going to be whether this is - this needs to be -- this is a self-executing document. It was interesting to hear from Van Jones about the 35 years old, the qualification there. That's self-executing. There's an argument here that it's not self-executing. This is what you're going to hear from the Trump team is that this - there has to be some other act of Congress. The argument will be that, yes, Congress acted. They passed the Insurrection Act. And when they passed the Insurrection Act, that directly applies here.

Here, the president wasn't charged with insurrection. Jack Smith had an opportunity to do it. He didn't do it. And -- and in this case, so now you leave it up to the state courts or state officials or partisan officials to willy-nilly make that determination? This isn't just about Donald Trump. They're going to argue that this is going to be more about, OK, could, for instance, the border crisis, right Joe Biden isn't sufficiently supporting the border crisis.

You have a Republican governor in Texas who says, you know, we want -- their officials are going to strike Joe Biden from the ballot because they're allowing -- and this is not out of the ordinary, you have a governor in Texas who could make -- who would make this argument giving kind of the stances that he's taken on the border, that they're - that Joe Biden is allowing for some type of invasion into the United States, and, you know, Bill Barr made that argument in his brief that this just kind of opens up the door for will nilly for state officials to be able to make these determinations without having, you know, a federal case brought or a criminal case brought where the - where the defendant faces charges.

CONWAY: And the answer to that is that Congress could have said that -- that the Constitution could have said, Section 3 of the 14th Amendment could have said that Congress needs to enact legislation. Instead it only says in Section 5 of the 14th Amendment that Congress may enact legislation. And that applies to all the provisions of section -- of the 14th amendment, including Section 1, which contains the equal protection clause, which prohibits race discrimination.

So, if the argument that the provisions of section -- of the 14th Amendment were -- were not self-executing, that would mean Congress could repeal the civil rights acts tomorrow and states could engage in discrimination.

[09:50:09]

TAPPER: OK.

We're going to come back to you for point three. I've got to squeeze in a quick break.

But, up next, I'm also going to talk to the Colorado top election official about Trump's disqualification from the state ballot as the U.S. Supreme Court is set to review the decision just minutes from now.

Stay with us.

(COMMERCIAL BREAK)

TAPPER: At the U.S. Supreme Court, the gavels will soon fall, and the justices will convene in their robes. They are set to review a Colorado high court ruling that Donald Trump is ineligible to be on the ballot for president. Efforts to disqualify Trump under the 14th Amendment to the Constitution's so-called insurrection ban. It had been pursued in multiple states. Most of them have been dismissed by election officials or the courts themselves, which means that Donald Trump is on those state's ballots. Maine is the only other state, other than Colorado, that has formally moved to disqualify Donald Trump. That case is still working its way through lower courts.

[09:55:03]

And joining us now, Colorado Secretary of State Jena Griswold, who says Trump is an ineligible insurrectionist. She will be at the U.S. Supreme Court during the arguments.

Thank you so much for being here. Really appreciate it.

So, I have to note here, Donald Trump has not actually been charged with insurrection either by special counsel Jack Smith or by DA Fani Willis in Georgia. That's a very - it's -- because it's a very high bar. It's very difficult to prove.

What does that tell you and does that complicate this at all?

JENA GRISWOLD, COLORADO SECRETARY OF STATE: Well, first off, good morning. Thanks for having me on. And, that's right, he has not faced criminal charges. But we don't know why prosecutors have not brought those charges. But I do not think it complicates this court case at the Supreme Court today because historically Section 3 of the 14th Amendment is a civil procedure. So, it's not a criminal court case, it's a basic civil procedure.

And he has faced trial. He had a five-day hearing in Colorado at the district court, and then he also appeared before the Colorado Supreme Court. Both of those courts determined that he did engage in insurrection.

TAPPER: So, that was going to be my next question. Five days of trial, while I know that he had an opportunity to present a defense and all that, that doesn't seem like that extensive a trial for such a serious charge.

GRISWOLD: Well, believe it or not, Donald Trump didn't even use his full amount of time allotted to him by the court. He was able to call every single witness that he wanted to call. He presented all of his testimony, and actually he did not use several hours allotted to him.

On top of that, he refused to appear himself. He refused to take deposition. So, I do think that this angle that, oh, he wasn't afforded due process is incorrect. He was afforded due process. A five-day court trial and then months of briefing and different side bar arguments with the court is a sufficient trial.

TAPPER: OK, for the record, I didn't say he wasn't afforded due process. I certainly think he was. It just - it just doesn't seem like an extensive trial for such a serious trial.

GRISWOLD: It' an argument that he had raised on - in -- with the media, not actually in any court filings.

TAPPER: Right.

GRISWOLD: And it is an argument that people are talking about.

He actually did not raise this due process argument with the Supreme Court, but we'll see if the Supreme Court today asks questions about it.

TAPPER: So, your state solicitor general is about to face the nine justices arguing on your behalf. She has ten minutes in front of the court. What will be her key argument?

GRISWOLD: So, as secretary of state, I think it's really important to protect our election law in Colorado. And our key argument is that it is OK for a state to determine to keep ineligible candidates off the ballot. So, just like we would not Arnold Schwarzenegger on the ballot because he's not a natural-born citizen, we can also determine to keep out -- off the ballot a disqualified insurrectionist.

TAPPER: You filed an amicus brief in the case, arguing that keeping Trump off the Colorado ballot guarantees that votes are not wasted on ineligible candidates, your language. Thousands of Americans have already voted for Donald Trump in the Republican primary and caucus process. What do you say to Americans who say that their votes, not judge's decisions, should decide who the next president is?

GRISWOLD: Well, just to clarify, we didn't file an amicus. The state of Colorado and myself were party to the case, so it's just one of our briefs to the Supreme Court.

TAPPER: OK.

GRISWOLD: And, honestly, I would say, you know, in Colorado, we believe that having disqualified candidates on the ballot can cause confusion. If someone votes for some -- a candidate who can never be seated in office, well, that is suppressive in itself.

And again, referring to some of Trump's own arguments, he wants to say, oh, this is election interference. What was election interference is his attempts to steal the 2020 election from the American people. Remember, we are only here, and Trump is only facing this lawsuit because he incited the insurrection in his multi-faceted attempt to steal the presidency.

TRUMP: So, last question. A group of Republican secretaries of state urged the Supreme Court, the U.S. Supreme Court, to rule against the Colorado Supreme Court, saying, "if secretaries of state, partisan elected officials alone may determine who meets the obtuse provisions of Section 3 of the U.S. Constitution, there are few obvious safeguards preventing abuse," unquote.

Now, I have to admit, I'm sympathetic to this argument because I have seen in Washington, any time a norm is shattered or something new like this happens, it goes on to be abused. Whether it's the filibuster or whatever.

[09:59:59]

What do you say to that argument that -- I mean, we've already heard Governor Ron DeSantis saying, well, George -- Joe Biden should be kept off the ballot because what's going on at the border is a rebellion or insurrection.