Trump v. Anderson: Amici Curiae Briefs

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Supreme Court Makes STUNNING ADMISSION in Order
by Michael Popok
MeidasTouch
Mar 7, 2024

Now that the Supreme Court has ruled that Congress and only Congress can pass laws and procedure to bar “insurrectionists ” like Trump from federal office, the next Congress must set up “insurrection” tribunals or delegate it to the DOJ to handle. Michael Popok explains how the Court acknowledged in writing that they played “politics” with the ruling and how the voters can play politics of their own, and fire back and fix the issue in November.



Transcript

Michael popok it's time for my legal AF
hot take youve already heard that the
United States Supreme Court the Anderson
decision overturned the Colorado Supreme
Court's decision that Donald Trump was
an insurrectionist Engaged in
Insurrection and could be banned by the
Colorado secretary of state from the B
ballot for federal office that you've
heard about but let me take you through
the Anderson decision and tell you what
the ramifications are by the five votes
on the United States Supreme Court not
including apparently Amy Cony Barrett
Soto mayor Kagan and and Kaji Brown
Jackson but the majority the five kavan
AR Gorsuch Roberts Alo and Thomas what
they've done to insulate Donald Trump
and what needs to happen next when there
is an election to elect a new Congress
because it is Congress the five members
of the United States Supreme Court say
that has to set up a system a Judicial
System another mechanism in order for
insurrectionists in the future to be
barred from the ballot because they're
not allowing the states to do it in a
nonsensical analysis in which in one
hand out of one side of their
mouth they say that the states are
allowed under the 14th Amendment to bar
and ban State office holders and
candidates who are insurrectionists
found out by the state adjudicated by
the state but they can't do it under the
federal candidates because of the
existence they say the majority of not
section three of the 14th Amendment
about the insurrectionists that are
disabled from running or from holding
office but section five of the 14th
Amendment which they say is a mandatory
enabling Clause that Congress must must
pass laws to effectuate the terms of the
14th
Amendment even terms such as exist in
section three that are self um
activating that are self affecting makes
absolutely no sense how could the states
be able to
disqualify State candidates right but
they can't disqualify Federal candidates
because I mean the section five exists
for
both which you know that internal
inconsistency which they completely
ignore in their
analysis is at the heart of this um
disingenuous reverse engineering they
wanted to to reach a political result
and conclusion the majority and so they
did and then they floundered around to
try to find something in the text of the
Constitution anything they could hang
their hat on even if it doesn't apply
because there's no way that section five
the enabling Clause if you will applies
to section three it just can't be
section three says if you engage an
Insurrection or Rebellion against the
Constitution you cannot hold office it
doesn't say subject to Section Five
Section Five I grant you I grant the
majority applies to other additional
laws to
enforce the Constitutional amendment to
enforce it so in the Constitutional
Amendment that's supposed to restore
civil rights to newly freed uh slaves
who are now freed black Americans I get
it that you have to as a congress
Empower them and the and that the
drafters of the amendment empowered
Congress to sort of you know fill in
connect the dots and produce new law to
effectuate the principles of the 14th
Amendment and its attempts to restore
civil rights to those that have been
disadvantaged and enslaved yes so you
pass voting rights laws you pass laws to
make sure that they uh the black
American's right to access to the ballot
is not disenfranchised in any way so
there's other I get it there's other
laws under Section Five of the 14th
amendment that have to be passed to put
into place and implement the 14th
Amendment but not section three section
three on its face is self-contained it
says exactly what the framers wanted it
to say and that automatically anyone who
engages in Insurrection has to be uh
taken off the ballot and not be able to
be seated unless Congress takes away
that disability by 2third vote now the
Supreme Court pointed to that and said
oh see Congress all roads lead to
Congress on a federal office states
don't have a role in federal Offices yes
they do there's a long line of cases by
the United States Supreme Court just not
this one that said that states of course
uh handle the manner and means of voting
in their states what the ballots are
going to look like including for federal
elections there's Federal electors for
which they have
responsibility and they have the states
have plenty of roles but John Roberts in
the oral argument related to the
Anderson decision laid it out we knew
this was coming because he said well I
see all of the 14th Amendment and all of
the Reconstruction Era post Civil War
amendments done to stop Ren Renegade and
Rogue States from acting against the
federal powers in other words it was to
reestablish the supremacy of federal law
and federal power over the Republic that
had just gotten through the Civil War
and the Rebellion against Abraham
Lincoln and the Republic I get that but
in this particular one they missed the
historical precedent I mean there were
plenty of briefs that were supplied to
the United States Supreme Court plenty
of amicus briefs they could have read 25
of the leading Civil War Scholars all
got together Civil War Scholars on Law
and the Constitution and told the
Supreme Court section three uh Rises and
falls on its own Merit doesn't need any
other enabling statute or legislation to
be passed but now we are where we are
the purpose of this hot take is to tell
you where we
are and why the election in November is
so important as we sit at the
intersection of law politics and
Justice now based on the Anderson
decision which yes all nine justices
agreed as Amy Cony Barrett liked to in
her one paragraph like to Pat herself on
the back that during these trying times
it's time for the Supreme Court to lower
the temperature of the body politic and
not raise it with our words okay thanks
Amy thanks uh thank you for that uh
little a little advertisement this ad
brought to you by the United States
Supreme Court whose reputation and
ethics lie in tatters at the feet of the
American
populace but having said that what
happens next based on this ruling
Congress and whoever's in charge of
Congress will need need to establish a
body a new set of statutes which details
exactly how disqualification based on in
Insurrection will happen who will
determine it are there going to is there
going to be like a congressional Court
sort of like the courts they used for
impeachment process for sitting officers
um of of the federal government is it
going to be so it's going to be a house
court or are they going to enable
federal courts or maybe even state
courts
because I guess they can um to AFF
that's the problem right there I just
pointed it out it just dawned on me
that's the problem with the Supreme
Court decision so why can't the why
can't Congress in their world they just
created why can't they delegate to the
states like Colorado and all the rest of
the states the right to determine for
their own whether someone's engaged in
Insurrection or Rebellion to put them on
the federal Ballot or not but let's say
they keep it in the federal court system
they're obviously going to either use
the court system or they're going to
have to set up a mini insurrectionist
court system sort of like martial law
within congress not that they're suited
as members of the legisl the legislative
branch to conduct trials but I guess
they could do that and by the way this
is exactly what the framers of the 14th
Amendment and all the Amendments coming
out of the Civil War era didn't want to
have happened National trials to
determine whether somebody is an
insurrectionist and whether they should
be on the ballot or not they were afraid
that that would tear apart the
Union right they had enough with
Jefferson Davis being prosecuted you
know as the first president of the
Confederacy on the return and the other
problem historically back to the
Anderson decision for a minute from two
weeks ago a week ago is that there's not
one Rebel leader who left the Republic
who got
disqualified from the ballot the way
that the Supreme Court just said just
said they needed to be not one of them
got disqualified by an act of Congress
an enabling statute an enabling
declaration by Congress which completely
undermines of course the Supreme Court's
use misuse of section five of the 14th
Amendment as they floundered around to
find something in the Constitution as
originalists and textualist they could
hang their head on so where are we now
the new Congress you see where this is
going depending upon who controls it
democrat or a republican will well if
it's Democratic controlled if the
American people send Joe Biden back to
the White House along with control of
the Senate and the house then we'll get
a series of laws established to enforce
the 14th Amendment Section 3 right we
we'll get a we'll get a code book we'll
get a something in the code of Federal
Regulation the CFR that outlines you
know like the IRS manual
exactly what will happen in you know the
rule book the owner's manual for how to
get rid of insurrectionists like Donald
Trump well they'll be I assume they'll
they'll delegate it to the federal us
attorneys to the Department of Justice
in the hands of whoever sits in the
White House and his us or her us
attorneys and a process I don't think
they're going to create a set of
statutes especially if it's
democratically controlled that will
require
Congressional national uh trials or
tribunals to determine if somebody's an
insurrectionist but this somebody has to
decide it as they said at the Anderson
decision see that's what the uh Colorado
said somebody has to determine who
engaged in Insurrection we agree it's
just not state byst state okay so what
do you want Congressional tribunals all
right so maybe that's what Congress does
but the point of the hot take is this is
going to turn on
whoever gets the house it's a race here
a race to save democracy if the
Democrats get the majority of the house
they'll establish I assure you in their
first term in their first six months a
series of laws and regulations enabling
the 14th Amendment Section 3 to prevent
future insurrections because without it
without this firewall being established
now which now the Supreme Court has
ripped out of the text there was a
firewall in the Supreme Court just
disabled it just emasculated it just
ripped it out by the root of its hair
from the Constitution meaning the
Congress is goingon to have to put it
back in and if we if without it without
that firewall we'll have worse than J
six next time Donald Trump loses in
November they'll Burn the City
down they'll actually accomplish what
they tried to accomplish they'll
assassinate elected
officials
now let's look at the dystopian world uh
that Donald Trump resides in of the
Republicans winning the house then they
won't establish any rules or regulations
to enable and enforce the 14th Amendment
Section 3 and the Supreme Court can't do
a darn thing about it Supreme Court is
not a court that through a mandatory
injunction or mandamus can force the the
the Congress I mean there'll be lawsuits
we'll cover them here on legal AF
somebody will file a law
to force Congress through a rid of
mandamus to compel them to implement and
and pass implementing language for the
14th Amendment Section 3 to stop
insurrectionist and they won't and the
courts will then throw up their hands
and say it's a political issue it's a
political issue and we don't touch
political questions we're not a body
politic we're a body of law when they
want to be well if they're a body of law
then then riddle me
this why is Amy Cony Barrett in
her um in her um
concurrence which lasted all of a page
in a paragraph why did she use the
following phrase if they're not trying
to re get involved with politics and
they're not trying to be activist judges
the same kind of activist judges that
conservative Republicans accuse for
years courts like the Warren court and
other courts of the United States
Supreme Court how do you explain how do
you reconcile this statement by Amy con
parrett she says the majority's choice
of a different path leaves the remaining
justices with a choice of how to respond
in my judgment this is not the time to
amplify disagreement with stency among
the court she's talking about the court
has settled a politically charged issue
that's very telling she just said the
quiet part out loud so the Supreme Court
put its big fat finger into the pie of
political issues when they have
doctrines that say they shouldn't the
court has settled a politically charged
issue exactly at the volatile season of
a presidential election well here's
somebody who's woken up and told the
world exactly what's happening there
they're putting their big fat finger on
the scale of Justice in favor of Donald
Trump she went on to say particularly in
this circumstance writings on the court
should turn the national temperature
down not up did she feel that way when
the dobs decision came out did she feel
that way when the dobs decision ripped
away a woman's constitutional right to
choose and bodily autonomy and right of
privacy about her most intimate
decision-making about Family Planning
and giving birth or not and ripped away
a woman's right to choose and Shrine in
the Constitution and preserved since Row
versus Wade did she care about now is
the time to turn down the national
volume of acrone
she did not but I do appreciate using
the Dakota ring here I do appreciate
that Amy Cony Barrett's At the quiet
part out loud we as a Supreme Court are
going to involve ourselves in an
activist way in politics and we're going
to rule in favor of one side and not the
other and that was in the side of Donald
Trump because nowhere in section five is
there a requirement that Congress pass
an enabling statute or do any kind of
enabling but now they're going to have
to and so we're going to follow and what
what can you do to affect the outcome
this is one of these rare shows one of
these rare analytic hot takes where you
the audience can actually do something
and affect the outcome right this is
like one of those video games where you
have you have alternate endings and
Alternate uh outcomes and you can choose
which one you want to play you have
alternate outcomes and you can choose
which one you want to play if the
Democrats get the house
then they will pass the required
legislation in order to stop
insurrectionist from ever holding office
again likely through federal courts and
attorney generals and the Department of
Justice the Republicans get the house
they won't and we will have
worse on Jan 6 including many of the
same people on Jan 6 led by the same
cult leader on Gen 6 and worse in the
future the choice is yours
the choice I had was to do this hot take
and we do it also on a show we call
Legal AF every Wednesday and Saturday
the name means exactly what you think
it's a cheeky name for what we do and we
pull together and curate for you the top
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you so until my next hot take until my
next legal AF says Michael popok
reporting

*******************************

Judge Luttig DROPS THE HAMMER after Supreme Court Rulings
by Michael Popok and Judge J. Michael Luttig
MeidasTouch
Mar 10, 2024 Legal AF Podcast

On a special MeidasTouch Legal AF interview, Judge J. Michael Luttig, conservative, Republican, Federalist Society member, constitutional scholar and patriot, joins Michael Popok to share his reaction to: 5 members of the US Supreme Court reading out of existence the Fourteenth Amendment, Section 3 and its ban on insurrectionist holding federal office; the Supreme Court’s decision to take up the issue of whether Trump has absolute presidential immunity at the 25 April oral argument and whether it spells trouble; and the Special Counsel considering whether to seek Judge Cannon’s removal from the Mar a Lago case.



Transcript

welcome to a special mightest touch legal AF interview of Judge Michael
ludig I can't think of a better time to have judge ludic back on our show then
to follow up on his last appearance with us talk about the Anderson decision this
the recent decision by the United States Supreme Court whether you want to call it a 90 Vote or something else to find
that 14th Amendment Section 3 doesn't say what it says it's actually effectively my view been written out of
the Constitution by their ruling and by their finding that section five requires
that Congress create new enabling statutes legislation bodies tribunals in
order to implement the words of the 14th Amendment Section 3 I want to talk to judge ludig about that what he saw from
the oral argument forward the way that the decision was written the concurrences and then we're going to
take it further fur what does it mean for the future of an
insurrectionist potential presidential candidate whether named Donald Trump or not and what is the procedures then that
would have to be implemented by Congress a congress in order to effectuate the uh
language of the framers of and the drafters of the 14th Amendment and section 3 and think about that and use
that lens to talk about the April 25th last day last session of oral argument
for this term with the United States Supreme Court and and what does he think that last ruling means for the one
that'll be coming up sometime in we assume in May or June and then I want to use the opportunity that that we have
judge ludic here to talk about some of the things that we are observing that are going on with judge cannon in
maralago Espionage obstruction case against Donald Trump just recently had
a national an Air Force National Guardsman sentenced to 16 years for an Espionage violation for doing a lot less
than Donald Trump has been indicted for down there but we have some some peculiar interesting odd I'll say it
rulings by judge Canon they started before the indictment even came out with their interference in the investigation
and now with some new decisions that she's about to make about um witness disclosure including grand
jury Witness disclosure on the public docket and I want to get judge ludik who was a longtime member of the fourth
Circuit Court of Appeals I want to get his sort of view off the cuff about Jack
Smith's next move um should she make this error taking it up to the 11
circuit and what he should ask for and again I can't think of somebody better to have with us at this moment in time
yes a a uh former uh Federal app pellet judge a uh conservative a republican um
a member of the Federalist Society on the board of the national Constitution Center but more than that constitutional
scholar of of of the first order uh a patriot who just cares about getting it
right and getting the relationship between the three branches of government the people of the United States and the
Constitution just perfectly right I wished I was interviewing him as a
member of the United States Supreme Court where he was often touted as being on many many short lists but for us we
have him here as our guest on legal AF judge Michael ludik thank you for being with us thank you Michael it's it's a
real pleasure to be with you this afternoon yeah I want to we had you before we were honored to have you
before to talk about what you thought based on the briefing um the airtight
analysis that came out of the the Colorado Supreme Court and their decision to find both Donald Trump was
an insurrectionist through a trial process it wasn't just something they got up one morning and and considered
and then um having the oral argument which went South quickly on uh what we
thought um was the proper analysis with judge Roberts for instance immediately
immediately that's why you can see his hand all over I my view the hand all over the the decision where he said uh
well every other part of the 14th Amendment and the Civil War amendments was about restraining state power why
would we be empowering States to make a major decision about who can be the president of the United States in the
federal office I said uh oh here we go once he went down that road although there wasn't a lot of discussion about
section five I thought our goose is cooked here so I want to get your view
of what happened with with Anderson what's your view of the decision by the majority the five in the majority the
nine for at least finding that Colorado a state cannot take a Federal Officer
candidate off the ballot and how the majority already went even further than that and its implications then we'll
turn it into the immunity discussion well Michael the the the decision was
remarkable even astonishing in every single
respect this was uh
arguably one of if not the single most important
constitutional and political case uh before The Supreme Court since
Congress created the Supreme Court I believe in 1789 um and of course going into the
argument that's what all of America believed the case to
be um the story of the decision really
began the day of argument uh there was a two-hour argument back back in febru on February
8th I believe and uh that was the most
remarkable argument that I've ever heard in the Supreme Court of the United States for this
reason uh in the entire two hours of argument uh the court barely
asked any question about any of the five moment
mous constitutional questions that it had to decide in order
to decide the issue that was presented in the case namely whether the former
president is disqualified under the 14th Amendment from holding the presidency in
2024 it was so remarkable that the the preponderance of the
probative questions by the court were leading questions to the former
president's lawyer Jonathan Mitchell and as I was listening to the argument
what I heard was that in every single instance in which a member of the Court
asked Mr Mitchell a leading question suggesting that the members
question proved that the former president was
not uh either subject to to disqualification or was not disqualified
at all Mr Mitchell responded to to the questioner by saying something to the
effect that well actually your honor that that's not correct that the the analysis that you
just asked me about does not support my
client uh or if it does it only does so
tangentially uh even up to the to the most striking question and exchange that
I heard where one or two of the justices
uh asked Mr Mitchell well I'm I'm mystified why you're not addressing what
I thought was your main argument in this court which was which is that the the
the president is not an officer uh of the United States for purposes of
section three and Mr Mitchell answered that question in the
following way uh your honor actually that is not our our main
argument and it's not our main argument because we understand that that that's a
difficult argument for my client to make now
so what what was crystal clear to
everyone uh in those two hours was that the Supreme Court
never intended to decide the question presented to it not that day not the day
of decision a couple of days ago not ever
so what did it do it it
searched in in vain in my view uh for a
a way to decide the case dispose of the case I should
say without ever deciding any of the major constitutional questions presented
and it seized upon uh uh the one that uh
that represent presented uh the pruum opinion though very
importantly only the opinion of a majority of five not the remainder remaining four
justices who concurred in the percum but con concurred only in the
result not the reasoning or the thinking uh that was laid out in the pruum
opinion again all of this is absolutely
ex extraordinary Michael for what was to be a landmark decision by the Supreme
Court of the United States again in in in in quick summary a very
short pruum opinion there was no named author of
this opinion opinion pruum opinion that the result of which
commanded nine votes but the reasoning of which commanded only five
votes and then perhaps the most
extraordinary aspect of this pruum opinion is that the five justices
majority of the court in the pruum opinion for the
nine went ahead and decided a handful of
momentous constitutional questions that were not even presented
by the case and that were not necessary for of
decision given their narrow holding
and it decided those that handful of momentous constitutional
questions in such a way that not only is it clear that the former
president will never be disqualified under section three of the 14th
Amendment no [Music] person in the future who engages in an
insurrectional Rebellion against the Constitution of the United States stes will be
disqualified under Section 3 of the 14th amendment that in effect in
effect the Supreme Court a majority of the Supreme Court annuled or
nullified section three of the 14th Amendment and section three of the 14th Amendment is the
Constitutions safety net for America's democracy yeah I want to talk through
that with you now and I I agree with completely with that analysis because the other provisions of the 14th
amendment that I'll just call it out I think Justice Roberts wrote most of this the or at least somebody aligned with
him Mo the other provisions of 14th Amendment I I get that that that section
five requiring Congress to pass enabling legislation or take other steps to
ensure that the policy decisions and the law that's in the Constitution is abided
by and is effectuated I get that you know and that's why you have you know things about voting rights and things
about disenfranchisement you know because so that the newly freed now black Americans have the protection of
the 14th Amendment through other legislation I understand that but I agree with you the 14th Amendment
section three on its face has always been self aecting you don't need any enabling you don't need something in the
code of Federal Regulation in order to disqualify someone what they latched on to in the opinion I want to get your
opinion on this but one one side note just for full disclosure Mitchell clerked for you at one time didn't he he
did he did Michael yeah just want to be be clear yeah so um if you know from
when you speak um you know they right from the beginning the language that the Supreme Court CH chooses of course has
great import and right in the beginning I knew we were in trouble on the first page when they said that the the the
respondents um these voters whom we refer to as the
respondents contend that after former president Trump's defeat he disrupted
the peaceful transfer of power by intentionally organizing and inciting a crowd that's how happened a court of
competent jurisdiction after hearing evidence determined that he participated
in an Insurrection they just don't like that as the tribunal or the power to do it and here's the inconsistency I want
to see what you thought about it I don't know how they could possibly hold these two competing ideas in in their in their
minds at the same time how could it be okay as they say in the opinion for a
state to disqualify a state office holder or candidate who participated in
Insurrection from their ballot but not a federal one because of
section five's requirement in their view that there be additional Congressional
legislation but what happen to the so the state doesn't require it the additional Congressional legislation and
what is the additional Congressional legislation are they gonna are we now the new Congress going to have to set up
tribunals are they going to have to set up Congressional courts are they goingon to now have to delegate to the
Department of Justice and the federal courts the power to try this what is the
next thing because we got to know for the next Congress to know how to now write back in to the Constitution the
safety net that you said that which I agree with they just wrote out Michael there
were compounding errors beginning with the first
paragraph that you just recited uh
and and we first off it's just transparent to anyone that that studied
the Constitution that that every step of the analysis even on the result that
garnered the nine was fundamentally wrong but to address your questions
first first section five is is
permissive it's it doesn't say that Congress shall um um uh legislate
appropriately uh to enforce for section 14 I mean Amendment 14th
Amendment it says Congress May that is constitutional
language that says Congress need not legislate in
order for the right or the privilege or in this case the
disqualification uh to be self-executing
uh and so and we have many examples throughout the
Constitution not just the 14th Amendment
itself as to section one but the 15th Amendment and other places in the
Constitution where where that language has been read as it's written to make
Congressional legislation permissive but not not necessary um and uh uh

[Judge Michael Luttig] And then, you
know, you cascade down to the holding under the 14th Amendment,
as you've described it, namely that the Court
held that Section Three was
intended as a limitation on the
states, and a limitation that prevented them from disqualifying
from their primary ballots, and presumably also the general
ballot, Michael, though I'm not certain of that, and on the reasoning
that, as chief Justice Roberts said, well obviously the 14th amendment was
ratified as a restriction on the states, my answer to the Chief Justice,
and to the Court, is, "Yes indeed. It restricted the
States from offering for federal
office insurrectionists against the Constitution. So in other words,
the Supreme Court turned the 14th Amendment on its
head, and against Section Three's
facial and textual allocation to the states of
the power to disqualify under the 14th Amendment. Not just State officials, but
Federal officials as well."

[Michael Popok] That is so perfectly put, Judge. And I haven't heard anybody else, even in your other
interviews, talk about that. Why would we ever want to prevent an organized entity, state or federal, from removing
insurrectionists from government? Isn't that the purpose of the 14th Amendment Section 3, no matter who does it?

yeah yes
of course it isn't and it's it's axiomatic that the Supreme Court would
always have the final you know uh as to Jud review judicial review this into the
other silliness in the opin opion you know the the the pruum opinion talks
about well if we weren't to hold as we do then the States you know would would
be a checker board and they'd be make making various and varying decisions as
to who will be disqualified and not disqualified well that's just that's just it's incorrect Michael yeah that
was C whole point of this case was for the Supreme Court to
decide the rule for the nation and rather than do that you know
they uh they they deliberately chose not to decide the
question and then Justified you know their their uh their decision in part on
the ground that well if they didn't do what do what we do then the states would
have all varying disqualification which of course would be
chaos uh I've never I I've never read an opinion from the Supreme Court like this
one Michael yeah I mean even in just to your point um judge I was called you
your honor I'm so used to addressing for federal judges as your honor on page five of their
opinion they say the Constitution empowers Congress to prescribe how those determination should be made we disagree
with that obviously the relevant Provisions in section five which enables com Congress subject of course to
judicial review right that's the point you're they're supposed to be the ultimate stop Gap if they don't think
the state tribunals however they were going to do it Secretary of State hearings or or or District Court
Superior Court level trials or however new tribunals they were going to create
in order to determine whether somebody was an insurrectionist like they could have done that so let let me move from
there well I want I got I do want to get your opinion let me just add Michael if
at that point in particular so four justices on the Supreme Court of the
United States disagreed with
that single most fundamental holding by the by the majority
namely that Congressional legislation is the only uh Avenue for enforcement of
section three of the 14th Amendment now there are several others so we know at
least one that the the four concurring so-called concurring judges justices uh
were referencing and that is a federal claim brought in federal court and
ultimately decided by the Supreme Court of the United States that of course has always been a Second
Avenue uh second to uh uh proceeding through the state process to the Supreme
Court and in in in dicta pure
dicta five members of this court decided that most fundamental question of
constitutional law you know on in a pruum
opinion from which four members of the Court had to actually
desent John Marshall and those four said as you know yeah as to that there is no
support whatever for that particular holding of
the majority just just to nerd out for a minute John Marshall must be spitting in his grave it would be the equivalent of
John Marshall and Marbury versus Madison instead of saying that the United States Supreme Court is going to be the final
Arbiter of whether something is constitutional or not instead saying we need to go back to Congress for Congress
to tell the court how to interpret the Constitution I mean for me it's that equivalency it's you're and and and and
you're very very close for but in but in this instance
you're exactly right for this reason the one thing that we
know not withstanding the Supreme Court's decision a couple of days ago is
that only the Supreme Court of the United States of America can determine
who is disqualified under the 14th Amendment
but this opinion put that in the hands of the Congress of the United States so as you
were saying in that specific way that has Chief Justice John Marshall
rolling over in his grave yep what did you what did you think judge about this
peculiar two paragraph concurrence by Amy Cony Barrett which was almost like
an ad for the Supreme Court and this was the have this line in particular which I
thought for me my eyes almost popped out of my head for I think you'll know obvious reasons the court has settled a
politically charged issue in the volatile season of a presidential
election particularly in this circumstance writings on the court should turn the national temperature
down not up politically charged issues and rhetoric being turned up or down by
a supreme court what what did you make of that
well I don't even know what to say Michael I mean U the first off it's
it's worth noting that that she's writing that not the
court if something like that to be said that's for for the court itself to say
but of course the court itself couldn't say it because the court didn't
have the it didn't have the full court on its side so what she was doing
really was trying to um say something that the majority
should be saying but could couldn't and at the same time
criticizing her three concurring colleagues just this is Soto myor Kagan
and Jackson uh you know lecturing them on on
what she said was uh their stridency in their opinion Michael uh I said on CNN I
think that there was not one single word of stridency in that concurrence by the by
the three justices yeah um so yeah and let off let
off with DOs to remind judge Justice Roberts where he was let let me transition for a minute because I think
it I think it's um it's going to be a good point to do it to to Pivot here now
that you see you saw the lineup for the majority the pruum the way the oral
argument went um and the things that they've lit on uh to to reverse engineer
to get the result that they wanted here in this opinion what do you think that
would that means if anything for the April 25th oral argument and the ultimate decision by the United States
Supreme Court on the narrow issue let me I've done a I've done my own kind of hot take analysis on this I was encouraged
by the narrowness of the appeal that they're interested in and and just to
frame it here for our audience the only issue they care about on appeal
nothing to do with due process nothing to do with the whether he needed to be impeached and convicted nothing to do with First Amendment none of the other
arguments that were raised at nauseum by at at the DC court of appeals level you got this 50-page well-reasoned what I
call airtight and waterproof decision by judge pan Henderson um and Childs and
you've got a supreme court that needs to weigh in once again hopefully for the last time in a while into whether
there's immunity for uh criminal conduct by a person sitting in the Oval Office
the only question that they want to hear about is whether a former president can
use immunity about official acts while he was in office and that wasn't as we
all know that those those words were chosen with care and for me I thought
that was encouraging because if those are the only two points that out of the entire decision rendered by the DC court
of appeals that they want to Loose Ends that they want to tie up I think that that means he's going to lose because
they either find that a former president can't use it much the way that you know
judge prior the 11 circuit found that a former Federal Officer can't use the removal statute which we never heard in
270 years before in a in a decision and they're going to make that distinction
that judge Henderson was so concerned about in the oral argument between ministerial and official and unofficial
and say yeah we're going to announce it if you are a former president you can't
use it Andor if you were a president doing official acts you can't be indicted for them but for things outside
the outer boundaries of that you can be what did you make of how they're going how the narrowness of the
appeal um call me crazy what I thought about it and what you think now having
we've got a test run a dress rehearsal here with the uh the Anders in ballot case in Insurrection case uh you know I
happen to be on the set at MSNBC uh speaking to Nicole Wallace when
the news came uh that that the Supreme Court had taken the case uh and uh I
think I probably said to her um because I had said it before that
interview there was not a reason in in this world for the Supreme Court to take this case um
um then while I was on the set you know someone slipped the Court's order in
front of me and and and there then and there began uh all of the two and
frowing by the um by by the uh Talking Heads as to the meaning o of of the
order including the question presented uh I believe that all of that
discussion was attempt in a teapot okay now turning to the only thing that
matters in that order namely the question
presented uh as your listeners know the Supreme Court always frames the issue to
be decided and it and and and it frames it narrowly or
more generally dep depending upon what it wants to decide in the
case uh I'm not encouraged or
discouraged At All by by the the framing of of this particular question this is
the question that needs to be decided and nothing else needs to be
decided um now that's separate and apart from from
my discouragement if you will that the Court felt the need to take it you know
in in in an ordinary ordinary circumstance meaning
99.9% of the times uh similar to
these uh the court one wouldn't take the case but if
it did it would affirm in this
instance the fact that the court took
it raises concerns in my mind as to whether the whether it will eventually
affirm the DC circuit opinion so you're worried now and and I
don't know if that what happened with Anderson makes you more comfortable or less comfortable but that having now
taken it rather than just leave well enough alone with a third with with the
DC court of appeals ruling and just say we're not taking this appeal that that seems seems to be right to us um the
fact that they're going to take it uh could indicate that we're going to get some aspect of an immunity decision that
could benefit Donald Trump that that's that's what I'm saying but but as as I say that you know we
we've not talked about the literally the most significant uh point about the court
taking the case namely that the uh that it is unlikely uh as a result that the former
presidents uh will be tried before the election um uh I I said I think that
night on CNN that uh that it's it's
highly unlikely that the court will decide this case before the the final week of session in late June early July
and if you think about it April 2 5th that's only two months before
July and uh well in fact and it took them two months to decide the the 14th
Amendment case right and uh but in any event once the court has has taken this
kind of case it's really incumbent upon it to to produce an opinion for for the
nation that's worthy of of the nation um it did not do that in Anderson
uh uh against Trump uh it it it simply must do that uh in this this case uh you
know lest it it's it's uh uh suffer its reputations suffer
legitimately uh in the eyes of the of the American people but the but the on the timing so regardless but let's
assume July 1 well you know and judge chuin has you know said earlier that
that that Donald Trump needs 88 days so let's call that three months so that
means the trial at its earliest would be held beginning the first week in October
four weeks before the election uh and you know the the trial is expected to
take two to three months so it's not going to be
completed until after the election if it's even started before the election
most notably if it were of if if if the trial could start the first week in
October that presents a very very difficult question for Jack Smith uh we
can take judicial notice of the fact that Jack Smith doesn't want to begin the trial of the former
president on October 1st 4 weeks before the presidential election of
2024 but of course if he doesn't and if Donald Trump is elected
president a month later then he will never be
prosecuted yeah and and let me let me agree with you on all of that especially
at the rate that they generated this 10 page pruum decision which I I hear you
is not is is a did not cover themselves with any glory in how um with the
American people and they'll have to do better with the next decision and it will take them inevitably longer and
then you're right where we're out of time there the one thing that I want our
our audience to know about is how much you've worked behind the scenes not just on various um news shows and law and
politics shows like ours but working tirelessly behind the scenes preparing
and participating in filing amicus briefs Friends of the Court briefs that
have gone to the DC court of appeals and up to the United States Supreme Court uh the two most powerful amicus briefs one
was written by your group of uh seven uh former Republican Administration senior
leaders judges lawyers and and the like including my law partner Nick rostow who joined you on that one and then and then
the group that was written uh the Amicus brief that was written by the the group of the 25 most highly regarded Civil War
historians especially in the area of law uh and civil and the rest and our uh reconstruction period the laws related
to reconstruction led by the the Princeton um scholar whose name just escaped me but those were the those were
the briefs that really should have been used now look you you there's more work for you to be done more work for you to
do not to give you homework we got a judge down in Florida in the maralago case judge alien cannon that seems to
like amicus briefs now the two that she's got in front of her one arguing that Jack
Smith that's what they call him not special Council Jack Smith Jack Smith has no power he was illegally appointed
he's unconstitutionally operating as a prosecutor whose budget was not properly
approved through the appointment clause and Biden didn't appoint Department of Justice did and she thought that was
very interesting it would help be helpful to her in her decision-making she granted the Amicus on her on her
paperless order and she also took another Amicus from Steven Miller who used to be in the Trump Administration
who was about as right Max as you possibly can think of attacking the National Archive um and so I don't I
didn't I looked at the do yet there aren't any more amicus briefs uh somebody has to help guide her uh and
and take in these amicus briefs and you know the Biden Administration has decided I guess because he's also candidate Biden uh
running for reelection and his opponent is the one that has all these issues like they stay on the sidelines during
the Anderson case they didn't the solicitor general the 10th Justice did not take a position did not file a brief
I'm hoping she'll do something um and they unleash her for the immunity case
because it troubles me that Joe Biden feels and the solicitor general feels U this the Optics of it look bad we don't
want to take a position when they play an important role in Supreme Court decision making and I don't think we
should be abdicating that but um on the mara Lago thing I sort of leave it on
this uh we got a judge there brand new in a in a rare relatively rural division
of the southern district of Florida I I practice in Florida judge aen Cannon you know she'd
only been on the bench for a year most of that was covid time and she had very few Trials of course nothing to do with
Espionage Act sepa or obstruction of justice against a former president no
one was well nobody's prepared for that but she certainly not she got reversed twice by the 11 circuit court of appeals
prior to the indictment when she tried to interfere with the prosecution and investig ation of Donald Trump in the
execution of the search warrant and was uh pretty handily uh admonished by the
11 circuit and now she's about looks like she's about to make a decision um
looks like to be the wrong one about the release of the names of witnesses uh including grand jury
protected Witnesses secret protected Witnesses on the public docket uh and on
a motion for reconsideration indicated that um she's inclined to um uh make the
Jack Smith of the world reveal these Witnesses they're going to take her up on an appeal citing clear error and
manifest Injustice and now it's back in front of the 11 circuit again another another Le another lemon another recall
for a sitting trial judge on the same case do you think that Jack Smith should ask for her removal and do you think the
11 circuit would would Grant it and replace her on the case Michael I'm just
hearing the the details of this uh I I've not followed that case or at all
frankly um I didn't know until just now even what the issue is though I'm
familiar with the past uh instances involving her her trial of this matter
um it's it's in exceedingly
difficult uh to uh remove a a trial judg from from a case exceedingly difficult
uh it it is only done for the the the most
[Music] egregious and in
deliberate um quote judicial misconduct I put that in quotes
because judicial decisions can be so egregious when and and so
numerous that it could justify by removing the judge from the case I I I
can't say at this point whether there's been a sufficient pattern of
egregious uh judicial misconduct to Warrant a removal of the case I doubt it
but I I will address you know the your question about Jack Smith um and he
doesn't need my advice he he knows this uh especially after having uh asked the
Supreme Court to to expedite the the uh the immunity case um uh that that it would be a
momentous decision uh by him to ask that she be
removed from the case uh I'm not in a position to say whether that would be
justified I'm just saying to your your audience that that it would be one of
the most important uh prosecutorial decisions in this case or in any other
like case to ask that that the trial judge be be removed um it would have to
be Beyond compelling in order for for um for the
judge to be removed from this case at this point let me go back um because you
um before you turn to to this case uh you were talking about the fact that the that the solicor General
of the United States did not uh Express her views to the Supreme Court on the
14th Amendment case uh I actually said publicly that that I believe that the
Supreme Court itself had an affirmative obligation to ask for the views of the
United States and I said the the solic general
has an affir of obligation to provide the views of the United States on that
on those issues whether or not asked by the Supreme Court um I believe that it
was you know an abdication of responsibility by the solicitor general
I'm not going to comment on the Supreme Court for the solicor general not to provide the views the views of the
United States now obviously uh she works for the president of the United States uh and and it's it's it's likely that
the question was was uh raised and discussed at the White House that would
not have been inappropriate um and and and uh and so
it may be that that she was asked not to participate um that's of no moment to
me I believe that the United States of America through the slicer General had
an affirmative obligation to provide the views of the United States in in the disqualification case totally agree with
you on that one um I don't think we can make that mistake again I think it would
be a mistake for the US to be silenced the United States Supreme Court likes to hear from the tenth justice they have a
role to play and they have a position that needs to be taken on behalf of the people and I hope that doesn't happen again judge ludig you're a uh a voice
that needs to be heard right now on every Outlet possible and I am so honored
that you have chosen to spend your time with us here at legal AF at that intersection of law politics and Justice
giving us your analysis and your view from a vantage point that is unique and
important and resonates with our audience and I I uh I thank you again for being with us judge thank you so
much Michael it's a pleasure thank you we'll see you again this is Michael popac from legal AF signing off on this
special interview of Judge J Michael ludig uh talking about all things
constitutional law and the presidency and we'll continue to follow it on legal AF our podcast at the intersection of
law politics and Justice every Wednesday and Saturday at 800m Eastern Time right
here on this mest Touch YouTube channel and then on audio podcast platforms wherever you pick up your your podcast
from and we'll have and we'll invite uh judge ludig to come back and join us again after the oral argument is heard
on the 25th of April and and if anything else happens that's out of the ordinary that his special brand of constitutional
analysis would help us get through so this is Michael popo for legal AF signing off