c-span.org/books that shaped america to view the series and learn more about each book featured. >> traveling over the holidays? make c-span's bookshelf podcast part of your playlist. we feature nonfiction books in one place. it features mobile -- multiple episodes with critical authors discussing history, biographies, current events and culture from her signature programs about books, afterwords,+ and q&a. listen this season and you can find it and all of our podcast on the c-span now free mobile video app or wherever you get your podcasts and on our website c-span.org/podcasts. >> a healthy democracy doesn't just look like this, it looks like this where americans can see democracy at work and

citizens are truly informed. in the public thrives. get informed straight from the source on c-span, unfiltered, unbiased, word for word. from the nation's capital to wherever you are, the opinion that matters the most is your own. this is what democracy looks like. c-span, powered by cable. >> "washington journal" continues. host: welcome back. i'm joined by kimberly wehle, the university of baltimore professor and a lot to talk about. i wanted to start with the breaking news about the michigan call and reported by the detroit news. what will that mean and what we

know so far? guest: we know this is new information and it sounds like -- and i'm not one or hundred percent but it sounds like the special counsel did not have this information when the justice department transferred stuff to michigan relating to donald trump and the election in the state of michigan but the question here is similar to what happened in georgia which produced an indictment, the famous call asking where donald trump allegedly pressured the secretary of state of georgia to find enough votes to take that column from joe biden in georgia and move it into donald trump's column that produce the sweeping indictment and other issues in georgia. is that a violation of michigan law to have -- to ask people who

are counting ballots to not do their due diligence and not do their public service and put that number in the column that the voters chose? it's too early to tell but it could produce more legal jeopardy potentially for donald trump and others who were potentially involved in that transaction. host: let's talk about some of the cases in front of the supreme court. i will put them on the screen. here's what's informative -- here's what is in front of the court now -- that's from the washington post and politico. let's go through and start with the first one which is the colorado supreme court ruling. where does that stand as far as the supreme court? guest: it looks like there has been talk from trump's lawyers

that they are interested in appealing that if they haven't already. there is a decision out of the supreme court of the state of colorado. every state has their own judicial system and it goes all the way up to the supreme court for the state and the u.s. supreme court can take certain cases from states if they want but the question would be, will the u.s. supreme court say yes, we will review the decision of the supreme court of colorado because it involves questions of federal law, that is how to read the 14th amendment of the united states constitution? the colorado supreme court has said we will hold off on enforcing or saying this ruling controls the primary in colorado until we see what happens in this appeal. right now, there is no actual effect from the ruling because

they sort of put it on hold pending what the united states supreme court decides, but the primary is coming up so the timing is very squished. if nothing happens, he will still be on the ballot. unless they decide we will enforce this. if the supreme court of the appeal then he will not be on the ballot. right now, they are saying we will wait to see if the top supreme court in the united states steps in and if they don't, then he's not on the primary ballot in march for the primaries in colorado. host: what's your opinion on that decision by the colorado supreme court? guest: this is very controversial understandably and it's important to distinguish between political arguments and normative arguments as to what should happen, what's good for the country, with good for the future of the process of

elections and the law. on the law, on section three of the 14th amendment, the colorado supreme court majority is very strong. it could be correct and it doesn't mean it's a good idea for the job of judges is to apply the law, not to make decisions about the political implications of something. host: i will put a piece of that supreme court ruling on the screen. president trump did not m incite the insurrection even when t siege on the capital was fully und he continued to supported by repeatedly demandinghat vice president mike pence refused to pehis constitutional duty and by calling senators to persuade them to stop the counting of electoral votes. it continues but i want to ask you about the dissent on that. one of the dissenters was the colorado supreme court justice.

he talked about the issue of due process. talk about that. guest: people need to understand that after the civil war, when there was reconstruction of the country, the north and south came back together. three amendments were passed. the 14th included the provision that said if you are an officer and took an oath for the confederacy, the south and you engaged in insurrection which is the civil war, you cannot hold office again. that's the provision. the question then is what is in insurrection. is the unit president of the united states an officer? the dissenting justice said you need to have effectively a number of things but you need to have a full-blown criminal trial that donald trump would be charged with insurrection and it would effectively be a jury

verdict beyond a reasonable doubt under the criminal system to actually find that he engaged in insurrection. what happened in colorado was a civil decision by a judge after a trial. there was a five day evidentiary trial there were witnesses and documents and donald trump's lawyers had the ability to put on a defense. the dissenting justice talked about due process but due process doesn't always mean a full-blown criminal trial. due process, the argument for the majority, was the evidentiary hearing he got. everything doesn't have to go to that very high bar of a criminal process but that's a question that's not really addressed one way or the other in the actual 14th amendment. host: if you have a question or comment for guest, you can call on her by party, republicans

(202) 748-8001, democrats (202) 748-8000 an independents (202) 748-8002. party,howell other states decin this? guest: i think there is a dozen other states that have similar claims in the court system. there are multiple states with a dish where the claims have failed for number of reasons either the wrong plaintiff brought it or the state law did not authorize this kind of thing. it's important to keep in mind that there is no national federal way to walk into court and say keep any candidate off the ballot across the country. every state has to apply their own state law. the colorado supreme court decision was really about colorado's rules for getting on the ballot. could it affect other judges?

they could read the colorado decision and say we think this makes sense, it's between all three or four decisions. i think it was 213 pages so it's a thorough and scholarly analysis, but it would not control anyone else unless the supreme court takes the case and decides it in a way that would affect the entire country. the court could decide on narrow grounds that doesn't impact anyone outside the state of colorado. host: newsweek has an article about neil gorsuch. apparently he made a decision that has some bearing on this case? guest: yeah, it's probably fair to anticipate that justice is thomases and alito would be on

board with this decision and maybe justice kagan and justice sotomayor and justice jackson might be -- agreeing with the majority in part because it's a very conservative originalist writing. they use the plain language, they go back to the dictionary from the time of the ratification of the constitution. they look at -- they say states get to do what states should be able to do, very conservative approach to finding that donald trump is disqualified. i think the question is they are pulling out of a different case which is not exactly the same. gorsuch, cavanagh, roberts and justice coney barrett, where would they fall in that decision and you need five votes to get to the merit that is a

full-blown consideration by the court. i think those of the justices in the mix. three of them were put there by donald trump. it's a little strange and then you've got justice clarence thomas whose wife was involved, somewhat involved, what you think of that? some would say that justice thomas at a minimum should recuse himself. there were multiple cases, a handful of cases after the november, 2020 election involving donald trump's claim of fraud and involving how the ballots should be counted because of covid and justice thomas did not recuse himself and didn't make it known that his wife was involved in efforts to persuade vice president pence to not certify the election for joe biden. the supreme court has a new code of ethics but there is no

enforcement mechanism so it's up to the justices. there is no police on the beat to say if you don't do it you're in trouble and there's no accountability. that's probably unlikely in the suggestion that just because a president appointed you -- that would be a problem for the supreme court anytime a president appoints someone and they are still president because all kinds of cases involving the federal government come up before the court. i don't think that's a strong argument for recusal. host: let's go to the trump immunity claim. guest: this is probably easier than the 14th amendment claim. there is nothing in the constitution that says presidents have immunity from anything. it's implied but the idea that if the president is doing presidential things, making decisions about how to run the executive branch are making

decisions around how to manage the military, they cannot be sued. you can be sued for doing presidential things because then they will just stop making good decisions or worry about their liability. donald trump has said effectively that everything i did relating to january 6 was part of my presidential duties. there -- all of the indictments essentially and just the january 6 case, they should all get thrown out because i was being president. the problem with that is presidents are not kings and there are limits on that. there were two decisions out of the d.c. courts, two different cases that essentially said the d.c. circuits and when he was trying to get reelected, that was him acting as a candidate and that him acting as president. also, the idea that presidents

who have the power of the military and the power of the fbi in the cia and surveillance power can commit crimes in office allegedly. then have no accountability, that makes absolutely no sense. i think that's not going to win the day in the supreme court. it could delay the january 6 trial which is now scheduled for march 4. if that gets delayed long enough past the election, donald trump is reelected, he could tell the justice department to kill the case or he could pardon himself. host: you do have an upcoming book called how the pardon power works and why. the big question is, could the president pardon himself? guest: i analyze that in the book. i think the answer to that should be no. as i argue, we have to remember some of us are old enough to

remember the old school horse -- schoolhouse rock no more kings. we get confused around presidents, they are not supposed to have complete authority, that's what the revolution was fought over. i like to think of it as a triangle. a monarchy is someone at the top and they dole out gifts to their subjects in america but at the other way around. people are the power and the tip of the triangle is the president so for the president to have power to pardon sub wooden which means a president can commit all kinds of crimes and i will just pardon myself and we would have a criminal law ring in the oval office and that would be good for no one. that's my argument. host: the last one for the supreme court is this challenge to the obstruction law for january 6 defendants. guest: that came up in a different case. it's not about the donald trump case. i think there is over 300 cases in the country involving the

statute. some of us might remember the enron meltdown involving accounting firms, basically a big mess in their documentation and financial statements, congress passed a law after that basically tightening that and part of the law says it makes it illegal to obstruct an official proceeding, so the department of justice said counting electoral college votes, the president is under an official proceeding and if you storm the capital or engage in efforts to stop the vote counting, that's obstructing the ultimate sacred passing of the power from one president to another. the problem is if you go to a different part of the law, it talks about documents, it's oxidant records and the argument

is essentially when you talk about enron and accounting firms, you're talking about a paper trail. what happened at the capitol and january 6, the people that have been indicted relating to that, that's not a paper trail. two of the four counts against donald trump by jack smith and the grand jury of washington, d.c. residence involves that claim, that charge. the supreme court has taken that case. the supreme court says that statute has been stretched beyond what congress thought. he they say the plain language covers it but i think it doesn't but it could knock out two of the four counts, charges against donald trump in the january 6 case which is set for trial in march. host: what's the timeline for a decision? guest: back to november of 2020, the supreme court did stuff really fast.

they can move quickly. elections are short-term so the idea that you're going to go the normal course with elections doesn't really work in terms of the calendar. they could decide not to so we really don't know. they could say we will issue a decision in june and jack smith will have to decide if he drops those counts and goes to trial and risk the idea that those will be later thrown out and will have somehow tainted the jury. that's a big decision. it's amazing that these three huge issues are before nine unelected justices and they will decide for the rest of the country. host: let's talk to callers now. florida on the line for democrats. caller: merry christmas, america. i wanted to say one thing -- it's obvious that donald trump was behind the insurrection. that's why he had that rally on the sixth, not the fifth and the

seven. i don't see how the supreme court can say no. colorado made the right decision. we will find out whether we have a constitution or not. i love you all, america goodbye. guest: the argument that you have to have a full-blown criminal trial is not really correct as a matter of due process. the due process clause about -- is about making sure government doesn't throw you in jail or take your property. running for president is like a job interview. the argument for a job interview , you get a criminal trial beyond a reasonable doubt is not very strong. the implications are huge for the country. one of the concerns in the political column is if this goes forward, we will just have politicians and states just saying that's insurrection and

that's insurrection and kicking people off the ballot willy-nilly. that's the political claim. i sort of agree with the caller. i don't think people seriously debate that donald trump had an important role in january 6. host: in michigan, republican line, good morning. caller: good morning, how are you today? host: good. caller: my question is i know she's on there all the time and she is a rabid democrat. i would like to have her definition of an insurrection. you talk about trump is on their and everybody walked peacefully down to the capital. he didn't say everybody walked into the capital break the windows out of the capitol. he said every buddy walked down there peacefully. they talk about insurrection and the only insurrection that i know of was the capital policeman that shot babbitt in

the neck. she was in there doing nothing but standing by a door. i'm trying to figure out, she's on here all the time, is she just against trump? anything she can do to get trump, she will get him. host: let's get a response. guest: as i said, i'm a law professor and the lawyer. politics are really different from law. the law is the rule in the process for determining how the rule works and here's the precedent. i would encourage everyone, you can google it to take a look at the majority opinion in colorado. they lay out in great detail the evidence and definition of insurrection according to the colorado supreme court and the evidence and i don't any says anyone disputes the goal, donald trump is made it clear any talked about the election being a hoax. the goal was to stop the

counting of the votes for the person the american electorate actually chose as president which was joe biden. that is what happened. the definition is a legal question that this court has adjudicated. i understand it's hard to hear that from a political standpoint but from a legal standpoint, it's a different conversation. host: independent in providence, rhode island, good morning. caller: good morning. i have one comment and then a question for the professor. my comment is that i would hope that it trump supporter in the audience would consider since joe biden is now the incumbent instead of trump, whether they would be comfortable ethically in terms of these situations of pressuring officials on his

behalf to overturn the election in georgia and michigan. would they be comfortable with that same behavior by president biden as the incumbent to turn the election over if trump wins? if they are not comfortable ethically, maybe they shouldn't be comfortable with mr. trump having behaved that way either. my question is, in terms of respect to the constitution, it's an interesting thing because one of the primary claims of mr. trump on the campaign trail was that he has legally won the election twice. for a hypothetical, counterfactual but hypothetically, if he won the election twice legally, then the 22nd amendment that says no person shall be elected to the office of president more than twice without any asterisk.

it has no caveat in the language. therefore he's either being dishonest with the public or he's being dishonest with the constitution. if one of those two things and true, then the other must be false. i would like to hear how the professor thinks of that. i yield my time. guest: it's sort of an interesting logical argument. i don't think donald trump is necessarily committed to the terms of the constitution. i'm paraphrasing and he has suggested suspending it. he is not a rule of law person. he doesn't seem to be running on fidelity and consistency with the constitution. i think the caller makes a really good point which is that we all think about what's good for the goose is good for the gander.

do we really want a country where the voters vote but at the end of the day, it's going to be people showing up and trying to force a different candidate into office? it's not a democracy anymore, it turns into something else and if we want to have a discussion about whether we wanted democracy anymore where the voters decide or if we really want something that's more like a dictatorship where the person in power just pound the table and uses force to stay in power, that's a different america. there is a whole host, a cascading effect of that that will affect different rights for our kids and grandchildren that i don't think we are really talking about. maybe people want that but that's really different from a peaceful transfer of power were everyone except the fact that the voters chose. that's the piece that donald trump will not accept. he's pushing a different kind of

government. i think we should have that conversation. host: we have it text here from robert in kentucky -- guest: it sounds like donald trump has all kinds of lawyers and the lawyers made arguments and persuaded three of the justices in colorado, two of the justices wrote decision that don't have anything to do with the constitution. one really dispute it. the lawyers are working this out in the courts. that means due process. donald trump has had lots of due process, he has lots of money for lawyers in support unlike a lot of americans who get involved in the criminal justice system and don't have lawyers and have it much harder. i think that is a good thing because that means judges and

smart people are hashing this out and coming up with thoughtful outcomes with reason. there is an argument potentially called claim preclusion that the colorado case would control other parts of the country but it's a thorny question. at the end of the day, he keeps litigating this. it doesn't have an impact unless enough states decide to keep him off the ballot so there is no way he could get 270 electoral college votes. at the end of the day, it will probably not affect november. host: arlington, virginia, democrat. caller: hi and thank you for taking my call. thank you for being on this very important issue. my question goes toward the supreme court. as a voter who is a little bit

in the dark about these things, i would like to know if there are any cases that would give an indication of how the court may respond. i ask this in light of the relationship between clarence thomas and samuel alito and their standing agreement to give standing to disputes between states. it's not very well-publicized but it's been evident in their practice as justices. i will give you the time and thank you for taking my call. guest: i think it's deeply concerning with the reports coming out of pro public about justice thomas and justice alito's accepting lavish gifts from billionaires who have

business before the court. that's the conflict of interest. that incentivizes any human to make decisions not based on the law and the facts but faced on their personal interests. there isn't a mechanism, they are there for life and there is not a mechanism to hold them accountable. on the three immunity cases, there is president but not a lot. donald trump tried to get absolute immunity involving his accounting records prior to the presidency. justice gorsuch and justice kavanaugh were in the majority saying no, you don't get absolute immunity. that's why i don't think that one will be particularly coming out the way donald trump hopes except for delays. on section three, i really don't know. it's probably 30-40% that it could be either direction. on the obstruction count, the fact that they took that case after all of these defendants have already been convicted, that probably means they are not comfortable with the justice

department decision. that is probably the biggest risk for the justice department. that's the one that i think is most likely to turn the table over in some of these indictments. host: on the republican line in new york, good morning. caller: good morning. you seem to forget that at the time, there is tremendous election interference. there were witnesses and published tape showing people putting ballots into counting machines and reinstating them over again. there were identified palette dez bell is not printed on government paper. at the same time in a number of instances, numerous videos showed poll watchers kept them from viewing the inspection and

some of the videos even showed brown paper rolls wrapped around the viewing windows to hide the process. couple of them showed defective dominion machines. when you are talking about this case with giuliani, those two election workers at the time they said there was a small leak in a bathroom sink and everybody said they were in imminent danger of flooding and we had to close the whole place down. this woman and her daughter came back in the middle of the night and surveillance tapes showed her moving these boxes around. how can you explain any of that stuff if it's not true? guest: because there is a lot of misinformation online. none of that is true. what is actually established is

that in georgia, there are guilty pleas in that multi-defendant indictments in which people admitted to actually engaging in what amounts to election fraud for donald trump. to the extent to which there is any established election fraud, it's not for joe biden, it's actually for donald trump. ruby freeman and shane moss had a defamation trial in washington, d.c.. rudy giuliani essentially admitted -- admitted that what he said about them was false. a jury of regular people like the caller, not lawyers, not politicians listened to the evidence and gave him test the plaintiff a whopping damages verdict. their lives were destroyed. i encourage people to look at their testimony. these are patriots that have volunteered and at least one of them were paid but they are

doing the sacred service of counting ballots for the rest of us in having our democracy work and i think it's really important to not continue to spread those lies. those women deserve to move on. what was done to them was inhumane. i think the jury verdict having looked at all the evidence demonstrates the truth in that moment. host: let's talk towd in virginia, independent. caller: merry christmas, all. i know the crooked democrats are doing their best and they will try the very best on -- up until the election to rig the election. the best way they can. the question i have to the guest is i know we have the ability,

all trump supporters will still have the ability to write him in. they can write him in on the ballot. the question i have to you is, i know there's been controversy as to who the real donald trump is. should we write in his full name , donald j. trump or what should we do on that? another question is, will that right invoke be counted? guest: that's a state-by-state question and everybody in america should understand the electoral system. if you want to understand in your state how would works, look on the secretary of state's website or the elections board website. google colorado election rules.gov. you can mess around with that and there's all kinds of voting rights websites to find out how it works in your state.

if you're really invested and i encourage everyone to be invested in this election and invested in the voting system, i think it's a great idea to think now about how you will get yourself registered and make sure you get your ballots a you are ready to go. i think that's a great point to underscore. host: what a very, connecticut, democratic line. caller: republicans preach state rights all the time. the outlawed abortion for a woman but have a state uses our constitution for this finding and republicans don't like it. i just find that amazing. guest: that's a good point. i did a piece yesterday that makes that point. it's called federalism and the ideas that states have power and we can have a whole show on the dobbs decision. i think it was deeply fraught

legally and constitutionally to send that west into the states because we have constitutional rights and the point of having them is to not allow legislators and politicians to interfere. he makes a good point -- if the justices on the supreme court adhere to their conservative principles, deference to the states like what the justification was for overruling roe v. wade should lead them to think about letting the colorado supreme court decision stand. the colorado supreme court was really interpreting colorado law, what does it mean to be disqualified under colorado law and the looped in the 14th amendment for that but at its core, it's a state law question. host: sophia from manhattan independent line. caller: good morning. thank you for allowing me. this is a word for kimberly.

you are answering everything the way i wanted. i'm just one person. what happened in colorado, at least they are trying. that was my first state and i'm proud of them for what they do. with donald trump, you just showed the words that the american dream is dead. i wish he would stop it whether he makes it or not. i don't want him to die. host: we will not advocate for that. ed pleasant valley, new york on the republican line. caller: good morning and merry christmas everybody. i've seen this woman on c-span quite a few times over the last few years. she is the right arm of the democrats.

she literally has nothing good ever to say about donald trump. i want to know what she's going to do when you bring her back on when biden gets impeached, the crime family gets caught and they are taking money from foreign countries. the other thing is because i hate to be removed today if everybody got their act together just for not defending her borders. people are dying of fentanyl poisoning, they are dying from illegal people that don't belong in this country and they have no recourse. these people have lost family members and biden is one of the biggest reasons. he invited the world to the u.s. the other thing i want to bring up is the documents case. i want to see the documents that mr. biden has that he has had scattered all over the east coast. and getting money from penn u as a commentator or teacher or

whatever he was doing, $1 million. in the meantime, the chinese are donating millions of dollars to that college. i want host: let's get a response. guest: i'm glad he brought up the fentanyl crisis in the crisis at the border. these are really serious issues. when i teach one of my classes, i will ask we have a new president, what can change? people don't necessarily understand that presidents don't have all the power to wave a magic wand and shift things but that's an extremely important issue in immigration is been a problem. drug addiction and things and homelessness from president to present and it's something we should all care about and we should push our leaders and elected officials to pay attention to that. on the question of impeachment, there is no evidence that joe biden did anything wrong. there is nothing at all. this goes to the question of not really due process but how many

beings have to be on the scale before you take action. there hasn't been anything that has been identified that joe biden did something to justify impeachment. it's important we take that into account. host: can presidents be impeached for bad political decisions? guest: doing your job as president even if people don't agree with it and it was not the best policy decision, that's not a basis for impeachment. host: he asked about the classified documents that president biden had from his time as vice president. guest: mike pence also had them. they turned them over right away but the issue in mar-a-lago with donald trump was that he did not turn them over for many months. it took a warrant that was executed and there were more documents. his lawyers signed a certification saying they've been turned over which was not true. videotape show boxes being moved around.

it's the cover-up and obstruction that got him in trouble. host: next is robert in georgia, independent. caller: good morning. i just wanted to say that i'm very grateful that the creator let me be born here. this thing with trump's lawyers, letting history repeat itself. richard nixon to the same thing with the infamous tapes. he said there was no rush and they did rush. as a result, the tapes were entered and he resigned. roger stone, giuliani trump, he was an infant was lawyer with mccarthy when the stuff went on in the early 50's. they are trying to do the same thing.

that's about what jack smith is doing. my comment about ashli babbitt, this young lady was in the military i understand 14 years and she drove 2000 miles. she was not dressed exactly for a tour of the capital. she had taken an oath to defend the constitution against foreign and domestic enemies. those people had to write whatever they did removing a congressman putting them in the basement and everything. she was there. i live in a part of the country were all towns and everything now have drive-by shootings and nobody suffers or gets all upset over an infant or child being shot by a stray bullet. she was there with time and chance and that's my comment. guest: there are police officers

that day. we also the videos and that will get you in trouble smashing windows and trying to climb into the capital. that just putting yourself in harm's way, very tragic that those people pass and there were suicides, police officers involved after that. it was very tragic day which is why it's being taken so seriously now from section three of the 14th amendment because it was such a serious incident in american history. host: the university of baltimore law professor and abc news legal contributor, thank you for coming on. guest: thank you for having me. host: later, the vice president of conservation research and innovation of the centers of environments alive discusses the endangered species act. we will hear more from you in open form and you can start calling in now. ♪

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>> at 7 p.m. eastern come a tour of the facility natural portrait galleries 1898 exhibit with porches of the major players in the spanish-american war illustrating the expansion of u.s. interest and influence abroad in that era . on the life and presidency of jimmy carter. at 9:30 p.m. on the presidency, election remembering first lady pat nixon and betty for who served back terms in the white house from 1969-1977 hosted by the gerald r. ford presidential foundation. the speakers include edward cox and susan ford bailey. exploring the american story, watch american history tv saturdays on c-span2 and find a

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