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kagan: thank you.[applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much. >> washington journal. our life form involving you to discuss the latest issues in government, politics, and public policy from washington dc and across the country. friday morning, retired navy cap being -- captain jean moran on the military strategy in the u.s. strikes in iraq, syria, and yemen and if they have been effective. university of texas constitutional law professor -- discusses impeachment as a political tool. washington journal. join at 7:00 eastern friday morning on c's and, c-span now, or c-span.org. book tv. every sunday on c-span two futures leading authors discussing their latest nonfiction books. 8:00 p.m. eastern, joshua green with his book the rubble where he describes economic populism on the left the future of the democratic party.
kagan: thank you.[applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much. >> washington journal. our life form involving you to discuss the latest issues in government, politics, and public policy from washington dc and across the country. friday morning, retired navy cap being -- captain jean moran on the...
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kagan: thank you. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much. >> won't face criminal charges for mishandling classified records. the president willfully retained classified materials when he was a private citizen. the president has released a stement which reads "this was an exhaustive iesgation going back to the 1970's. i cooperated completely. over my career in public service, i've always worked to protect america security." you can read the entire special counsel report at www.c-span.org . announcer: coming up live at 1 p.m. eastern, white house briefing, we will hear from the press secretary and john kirby and we will likely hear more on the recent special counsel report. at 2 p.m., the former polish president discusses legacy and the fight against communism. at 3:30 p.m., u.s. air force acquisition priorities
kagan: thank you. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much. >> won't face criminal charges for mishandling classified records. the president willfully retained classified materials when he was a private citizen. the president has released a stement which reads "this was an exhaustive iesgation...
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kagan: thank you.[applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much. >> earlier today, the u.s. supreme court heard oral guments on whether former president donald trump sbe on colorado's 2024 presidential primary ballot after the state supreme court ruled in dec that he was ineligible based on the consti's insurrection clause under the 14th amendment. tonight00 p.m. eastern on c-sp your reaction to the casend its potential impact before showing the oral argument at 8:30. you can watch on the free c-span now video app or online at c-span.org. >> c-span is your unfiltered view of government. we are funded by these television companies and more, including comcast. >> you think this is just a community center? no, it's way more than that. >> comcast is partnering with 1,000 community centers to create wi-fi enabled listings
kagan: thank you.[applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much. >> earlier today, the u.s. supreme court heard oral guments on whether former president donald trump sbe on colorado's 2024 presidential primary ballot after the state supreme court ruled in dec that he was ineligible based on the consti's...
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kagan: thank you.[applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much.
kagan: thank you.[applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2023] j. kagan: thank you very much.
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many of the toughest questions were coming from justice jackson and justice kagan. and justice jackson notably kept on raising this first question, which is perhaps the presidency is just not covered by this provision. and she has always taken a particular interest in the 14th amendment. and had said, you know, it's plausible that he was not. some of the other justices raised the fact that the 14th amendment was designed to take power away from the states. and, yet, as justice -- chief justice roberts said you are curiously finding that there is a provision here that radically expands that power. and that seems to go against the entire tenure and purpose of the 14th amendment. this was really a tough-going. jason murray did as good a job as he could do. but i imagine he wanted to do everything short of pulling the fire alarm at one point. because it was -- he was just getting hit from all sides in this argument. >> harris: at one point i was watching this and i said it felt more like a congressional hearing than a discussion at the u.s. supreme court. it was pretty
many of the toughest questions were coming from justice jackson and justice kagan. and justice jackson notably kept on raising this first question, which is perhaps the presidency is just not covered by this provision. and she has always taken a particular interest in the 14th amendment. and had said, you know, it's plausible that he was not. some of the other justices raised the fact that the 14th amendment was designed to take power away from the states. and, yet, as justice -- chief justice...
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justice kagan: thank you. chief justice roberts: justice gouc justice gorsuch: i have not had a chance to talk about the offir int. mr. mitchell makes the argument that in e mmissionslae, all officers are to be mmissioned by the president. it seems to be all-encompassing, that language. i am curious your response to that. along the way, i pok athe difference between office and officer in the other dcussion. one point your friends on the outside woul make -- on the other side would make is that is how the constituti us those terms. when you're the president pro tem t senate and is bigger of the house areffers of the united states because the nstitution says they are. you also know they don't hold any office in the united states because of the incompatibility clause that says they cannot. maybe the constitution to u to delay reader might lk little od not prepositions, nouns, a diinion. maybe that is how it works. thoughts. mr. murray: i would start with the idea that the meaning of officer in the 1780's is the s
justice kagan: thank you. chief justice roberts: justice gouc justice gorsuch: i have not had a chance to talk about the offir int. mr. mitchell makes the argument that in e mmissionslae, all officers are to be mmissioned by the president. it seems to be all-encompassing, that language. i am curious your response to that. along the way, i pok athe difference between office and officer in the other dcussion. one point your friends on the outside woul make -- on the other side would make is that...
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Feb 11, 2024
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justice kagan: the effect of that is obvious, yes? . murray: no, different states can have different procedures. some states can allow insurrectionists to be on the ballot. we are not loongnto constitutional questions. even in th ection cycle, there are candides on the ballot in sometas even though they are not natural born citizens. that is a function of states power to preserve their own electors and avoid disenfranchisement of their citizens. justice kagan: thank you. chief justice roberts: justice gorsuch. justice gorsuch: i have not had a chance to talk about the officer point. mr. mitchell makes the argument th in the commissions clause, all officers are to commissioned by the president. it seems to be all-encompassing, that language. i am curious your response to that. along the w, i poked at the difference between office and officer in the other discussion. one point your friends on the ouidwould make -- onhe other side would make is that is how the nstution uses those terms. when you're the presintro tem of the senate and is bi
justice kagan: the effect of that is obvious, yes? . murray: no, different states can have different procedures. some states can allow insurrectionists to be on the ballot. we are not loongnto constitutional questions. even in th ection cycle, there are candides on the ballot in sometas even though they are not natural born citizens. that is a function of states power to preserve their own electors and avoid disenfranchisement of their citizens. justice kagan: thank you. chief justice roberts:...
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mitchell: that is exactly right, justice kagan. congre took up the invitation provided by griffin's case. the only enforcement legislation that isurrently on the books is the insurrection criminal case and congress made all of these decisions, the initial enactment of the enforcement act, the repeal of the provisn of 1948, they were all made with griffin's case as the backdrop. the understanding was tha these remedies would be exclusive o state court remedies so there is not an express -- there did not ne t be because griffin's case provided e ckdrop. justice kagan: suppose we told all of that away, suppose there were no griffin's case and there were no subsequent congressional entmt, but do you then think the rule would be? mr. mitchell: it is a much harder argument for us to make because normally -- i mean every other provision of the 14th amendment has been treeds self-executing. there are practical considerations uniquto section the at counsels in favor of a row similar to what chief justicehase spelled out and grifn's case and
mitchell: that is exactly right, justice kagan. congre took up the invitation provided by griffin's case. the only enforcement legislation that isurrently on the books is the insurrection criminal case and congress made all of these decisions, the initial enactment of the enforcement act, the repeal of the provisn of 1948, they were all made with griffin's case as the backdrop. the understanding was tha these remedies would be exclusive o state court remedies so there is not an express -- there...
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justice kagan hammer rg home the same idea. all of them seem troubled by that idea, which is amazing if you think about it. that's not an argument about the text of the 14th amendment, about the history. that's an argument about consequences and political consequences, which for a court that for in many instances tries to sort of look at the original interpretation of things and focus on those types of aspects, they seem more focused today on the fallout of this potential decision. >> ari, i'm wondering, were there surprises for you in listening to these arguments? >> i don't know if it's a surprise. but we saw a real emphasis on pragmatism, as we heard. at one point you had justice jackson citing justice kavanaugh. we saw some cross agreement there that's interesting and could be a good thing for the country any time the court can substantively and in terms of perception be understood as doing something other than raw partisan politics, trying to decide who benefits. i will say it was very clearly a bad day for the colorado si
justice kagan hammer rg home the same idea. all of them seem troubled by that idea, which is amazing if you think about it. that's not an argument about the text of the 14th amendment, about the history. that's an argument about consequences and political consequences, which for a court that for in many instances tries to sort of look at the original interpretation of things and focus on those types of aspects, they seem more focused today on the fallout of this potential decision. >>...
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justice kagan first to bring up do you let one state actually make a decision that ripples down to decide for the whole country. justice barrett followed up if we rule for colorado that's what will happen. and the chief justice, if we say states have the power to do this, there will be some states that will take that and say great, kicking a dem off the ballot, others say we will kick a republican off the ballot and leaving a handful of states to decide this entire election for the entire country. let me give you a little bit of what justice ketanji brown jackson had to say about the list that's in section 3 of the 14th amendment, who would be subject to getting kicked off the ballot if found guilty of insurrection. >> your point there's no ambiguity with having a list and not having president in it with having a history that suggests they were focused on local concerns in the south, with this conversation where the legislators actually discussed what looked like an ambiguity, you are saying there is no ambiguity in section 3? >> let me take the point specifically about electors and senat
justice kagan first to bring up do you let one state actually make a decision that ripples down to decide for the whole country. justice barrett followed up if we rule for colorado that's what will happen. and the chief justice, if we say states have the power to do this, there will be some states that will take that and say great, kicking a dem off the ballot, others say we will kick a republican off the ballot and leaving a handful of states to decide this entire election for the entire...
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one was when the you just showed with justice kagan.saying to the states who had a tough go of it today, she's basically saying that there are speech -- first amendment interests on the side of the tech companies here as well. if youtube or facebook or whatever is forced to carry certain speech that they disagree with, that is in itself and infringement on speech. that's four point. justice kavanaugh followed it up later by saying, look, we decided in 1976 -- of very famous majority, -- you can't suppress some speech in order to enhance the views of others. isn't that what this law is basically doing? suppressing the tech companies writes in order to -- against another person that have been banned. together with both of those. >> i will let you go on, but first just for the viewers, we will play kavanaugh citing that. i tried to translate some of this, a fact that you always lever agree with somebody behind a certain policy. that doesn't tell you what the supreme court wants to do long term. it will be life after desantis, trump, and th
one was when the you just showed with justice kagan.saying to the states who had a tough go of it today, she's basically saying that there are speech -- first amendment interests on the side of the tech companies here as well. if youtube or facebook or whatever is forced to carry certain speech that they disagree with, that is in itself and infringement on speech. that's four point. justice kavanaugh followed it up later by saying, look, we decided in 1976 -- of very famous majority, -- you...
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liberal justice elena kagan got right to the point. >> i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. >> reporter: conservative amy coney barrett agreed. >> it just doesn't seem like a state call. >> reporter: the colorado supreme court said trump should be removed from the state's ballots, nearly ruling he committed insurrection on january 6th, was disqualified under section three of the 14th amendment. it says no person shall be a senator or representative in congress or elector of president and vice president or hold any office who took an oath and then engage in insurrection. just as can deonte brown jackson focused on the amendments specific justice ketanji brown jackson focus on the specific words, that trump could prevail, suggesting the provision just after the civil war clearly did not apply to presidents. >> they were listing people that was barred and president was not there. and so there is an ambiguity, why would we construe it against democracy? >> reporter: the justices also were troubled
liberal justice elena kagan got right to the point. >> i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. >> reporter: conservative amy coney barrett agreed. >> it just doesn't seem like a state call. >> reporter: the colorado supreme court said trump should be removed from the state's ballots, nearly ruling he committed insurrection on january 6th, was disqualified under section three of...
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. >> reporter: and justice elena kagan, appointed by bill clinton -- >> i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. >> reporter: justice amy coney barrett agreeing. >> it just doesn't seem like a state call. >> reporter: chief justice john roberts warning that if the court upholds colorado, a new weapon could be introduced into the country's polarized political life -- red states going after democrats, blue states after republicans. >> i would expect that, you know, a goodly number of states will say, whoever the democratic candidate is, you're off the ballot, and others, for the republican candidate, you're off the ballot. it will come down to just a handful of states that are going to decide the presidential election. that's a pretty daunting consequence. >> reporter: but looming over these arguments, the national trauma of the attack on the capitol. even though trump himself describes the day as beautiful, justice kentanji brown jackson got trump's lawyer to acknowledge the reality of what hap
. >> reporter: and justice elena kagan, appointed by bill clinton -- >> i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. >> reporter: justice amy coney barrett agreeing. >> it just doesn't seem like a state call. >> reporter: chief justice john roberts warning that if the court upholds colorado, a new weapon could be introduced into the country's polarized political life -- red...
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and justice kagan alluded to one of those. but there are others.tate cannot use its power under article two electors' clause to instruct its presidential electors only to vote for white candidates. that would violate the y'all protection clause. nor can it exercise its power in a manner that would violate the constitutional holding of the u.s. vers is thornton and they can't use the quleek tors' clause as an excuse to impose additional qualifications for the presidency that go beyond what the constitution enumerates in article between. and the problem with what the colorado supreme court has done, they have in a way changed the criteria in section three by making it a requirement that must be met before the candidate who is seeking office actually holds the office effectively moving forward in time deadline that the candidate has for obtaining a congressional waiver. there has still been no answer from the anderson litigants on how to distinguish the congressional residency cases where the courts of appeal, not necessarily this court, but the court
and justice kagan alluded to one of those. but there are others.tate cannot use its power under article two electors' clause to instruct its presidential electors only to vote for white candidates. that would violate the y'all protection clause. nor can it exercise its power in a manner that would violate the constitutional holding of the u.s. vers is thornton and they can't use the quleek tors' clause as an excuse to impose additional qualifications for the presidency that go beyond what the...
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and he is attacking elena kagan. wow.t just lose their credibility, they have lost their minds. joining me now is sol wisenberg, former deputy independent counsel fox news contributor. sol, who is getting the constitution wrong here? >> you know, the whole idea behind using state courts and section 3 of the 14th amendment to try to take trump off the ballot was so ridiculous from the get-go with such a loser, you just shake your head and wonder not that somebody like would be involved in it. he fell off the deep end long ago. judge luttig would name to it. really amazing. and nothing surprising about yesterday's argument. >> laura: now, sol, i listened to the entire thing, justin thomas just hit it out of the park right off the bat. first one to ask a question. the lawyers representing what the colorado's supreme court was in this case that trump could be ruling, that trump could be knocked the ballot basically was trying to argue facts that weren't actually at play here and completely schooled, it looks like this could a
and he is attacking elena kagan. wow.t just lose their credibility, they have lost their minds. joining me now is sol wisenberg, former deputy independent counsel fox news contributor. sol, who is getting the constitution wrong here? >> you know, the whole idea behind using state courts and section 3 of the 14th amendment to try to take trump off the ballot was so ridiculous from the get-go with such a loser, you just shake your head and wonder not that somebody like would be involved in...
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that was justice kagan's point. when we t em together, the work of the function of the igr, i think, could be to start the chemical reaction that then results in the totic, more than one sh cing out of the gun. why can't i interpret it that way? if that were actually happening, then i think you would have a plausible argument for y is is a machine gun. that's not the way itor. >> that's because you're tereting the statute to say it has to be about the mechanics. >> no. >> what i'm trying to understand is how that's consistent with congress putting modificio in here. >> i'm just saying -- >> can i just change a little bit? if you're rig tt congress cared about acy the mechanisti operation, then i'm confused as to why this statute also tksbout modifications. because that suggests that ngss was not hung up on exactly how this gun operates. we're sweeping inllinds of things, things that originally weren't designed to work this waat all, right? we're allowing for machine guns to ilu things that can modify something that
that was justice kagan's point. when we t em together, the work of the function of the igr, i think, could be to start the chemical reaction that then results in the totic, more than one sh cing out of the gun. why can't i interpret it that way? if that were actually happening, then i think you would have a plausible argument for y is is a machine gun. that's not the way itor. >> that's because you're tereting the statute to say it has to be about the mechanics. >> no. >> what...
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i got to go to the kagan kagan people. >> well, you have to be careful about predicting from oral arguments. oht predic, no. we down times friday nightht is is friday night. okay. it's been a long time since i've heardt this oral argument s lopsided. and i think you're right. it's either going to be 8 to 1 or nine zip and it's goingthat to be on relatively narrow grounds in order that chief cae roberts can get everybody on board. but what i really appreciategumd about the argument yesterday, laura, was that, you know, everybody y it seriously and i r was very proud of the court they were seriously discussings. important constitutional issues. they weren't talking about libera thl, conservative orof the anything like that. i think it really redounds c t u to the benefit of the court and to the prestige of the court. >> yeah. brad kavanaughy thatlookere is y that, look, there's a criminal statute on the books, insurrection that wasn't at play here. >> and then justice alitd then d raised the concern about the potential for retaliation reaction on the part of other states and chaos. listen to
i got to go to the kagan kagan people. >> well, you have to be careful about predicting from oral arguments. oht predic, no. we down times friday nightht is is friday night. okay. it's been a long time since i've heardt this oral argument s lopsided. and i think you're right. it's either going to be 8 to 1 or nine zip and it's goingthat to be on relatively narrow grounds in order that chief cae roberts can get everybody on board. but what i really appreciategumd about the argument...
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doesn't that just buckle back into this point that justice kagan was making, you know, that we made with mr. mitchell too, that it just doesn't seem like a state call. >> three points, your honor. the first is that ordinarily this court reviews factual findings for clear error. president trump made the point in his reply brief on constitutional questions that require a uniform resolution this court can do more -- something more like a boss court style and we would have objection to that given the record here the facts that are disputed here are incredibly narrow. the essence of our case is president trump's own statements that he made in public view for all to see. >> then that's saying that in this context, which is very high stakes, if we review the facts essentially de novo, you want us to watch the video of the ellipse and make a decision without any deference to or guidance from lower court fact finding. that's unusual. >> ultimately president trump himself urges this court to decide the merits of his eligibility on the factual record here on page 2 of his brief. he's never at any p
doesn't that just buckle back into this point that justice kagan was making, you know, that we made with mr. mitchell too, that it just doesn't seem like a state call. >> three points, your honor. the first is that ordinarily this court reviews factual findings for clear error. president trump made the point in his reply brief on constitutional questions that require a uniform resolution this court can do more -- something more like a boss court style and we would have objection to that...
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Feb 3, 2024
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how about the second amendme you briefly alluded to in response to justice kagan as well. my sweet racy seventh amendment as statutory argument in light of the prosi of title 28 this is nhi in the bankruptcy will derogate from that contextf a wrongful death d personal injury claims. we d think that is a significant issue here and it is notable this placcounts for seventh a minute rights are people of claims against purdue but not forho so claims against them. the amicus briefs discuss the seventh amdmt itself more extensively. >> i just want to make sure you agree to them and thought nothings erroneous. >> we think they are private claims here. >> some of your rhetoric as compared to your position but so o your rhetoric has been the that they did n put enough expression the colloqu wh justice kagan your position is like there n amount they could do but your rhetoricas been they have not put in enough. on that point, isn't the diovy process that the bankruptcy court commissioned and oversaw that was very thou was from this perspective? this amount contributed by the directo
how about the second amendme you briefly alluded to in response to justice kagan as well. my sweet racy seventh amendment as statutory argument in light of the prosi of title 28 this is nhi in the bankruptcy will derogate from that contextf a wrongful death d personal injury claims. we d think that is a significant issue here and it is notable this placcounts for seventh a minute rights are people of claims against purdue but not forho so claims against them. the amicus briefs discuss the...
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Feb 9, 2024
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elena kagan was extremely concerned. the first soundbite was elena kagan.e was extremely concerned with the ability of colorado to kind of on its own exclude trump from the ballot. the best way i can explain the liberal decision or why the liberals took the position they did is that i would say you elena kagan, jackson, sonia sotomayor to some extent, they were more concerned with a red state -- republican just lecture or republican governor kicking somebody like joe biden off the presidential ballot that they were willing to stop colorado from kicking trump off the ballot for good-faith reasons. while i get that calculus as a real politics method, it is a problem when your legal decisions, your legal rulings are based on what you think the bad faith will do that. it is a problem if the lock is reduced to come, my god, what would ron desantis do? that is not a good way to run a country. but that is a way that we saw the liberals want to play it yesterday. the other point that is worth mentioning, you brought up to the lawyer for the colorado side was. let's
elena kagan was extremely concerned. the first soundbite was elena kagan.e was extremely concerned with the ability of colorado to kind of on its own exclude trump from the ballot. the best way i can explain the liberal decision or why the liberals took the position they did is that i would say you elena kagan, jackson, sonia sotomayor to some extent, they were more concerned with a red state -- republican just lecture or republican governor kicking somebody like joe biden off the presidential...
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. >> everybody's eyebrows shot up to their hairline today when center left justice kagan said this. > the question that you have to confront is why a single state should decide who gets to be president of the united states. >> the court largely avoided discussion of whether january 6th was an insurrection. >> it's not like it's every day that people try to overthrow the government. >> there's a reason section 3 has been dormant for 150 years and it's because we haven't seen anything like january 6th since reconstruction. insurrection against the constitution is something extraordinary. >> this was a riot, not an insurrection. the events were shameful, criminal, but did not qualify as insurrection as that term is used in section 3. >> why would you allow someone to run for office if they are ineligible to hold that office, i don't know. >> they're creating their own special off-ramp and they're building it out themselves. >> you sort of feel like the justices are hurtling their bodies against the sides of the train, just being, like, get me off this train. >> get me off this train. the
. >> everybody's eyebrows shot up to their hairline today when center left justice kagan said this. > the question that you have to confront is why a single state should decide who gets to be president of the united states. >> the court largely avoided discussion of whether january 6th was an insurrection. >> it's not like it's every day that people try to overthrow the government. >> there's a reason section 3 has been dormant for 150 years and it's because we...
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. >> justice kagan expressed similar concerns along with plenty of questions about why states should have the power to control who lands on a federal ballot. >> the question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. >> shannon: so the justices are expected to vote in a private conference in the next day or two. i suspect we get a decision in days or weeks, not months. remember, by the way, president trump's legal team has until monday to file for a stay here or actually appeal that decision that ruling against him on the issue of immunity in the case now pending. the federal criminal case against the former president. bret? >> bret: shannon bream live outside the court. shannon, thanks. let's get some legal analysis on our top stories. jonathan turley george washington university law school joins us now. jonathan, good evening. >> good evening. >> bret: first i want to start on this special counsel report. it is quite something. first on the legality that the special counsel robert
. >> justice kagan expressed similar concerns along with plenty of questions about why states should have the power to control who lands on a federal ballot. >> the question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. >> shannon: so the justices are expected to vote in a private conference in the next day or two. i suspect we get a decision in days or weeks, not months....
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. >> everybody's eyebrows shot up to their hairline today, when center-left justice elena kagan saidthink that the question that you have to confront is why a single state should decide who gets to be president of the united states. >> the court largely avoided discussion of whether january 6th was an insurrection. >> it's not like it's every day that people try to overthrow the government with violence. >> there is a recent section three has been dormant for 150 years, and that's because we haven't seen anything like january 6th, since reconstruction. insurrection against the constitution is something extraordinary. >> this was a riot, it was not an insurrection. the events were shameful, criminal, violent, and all of those things, but it did not qualify as an insurrection as that term is used in section three. >> why would you allow someone to run for office if they are ineligible to hold that office? i don't know. >> they are creating their own special little off-ramp, they are building it out themselves. >> you sort of feel like the justices are like hurdling their bodies against
. >> everybody's eyebrows shot up to their hairline today, when center-left justice elena kagan saidthink that the question that you have to confront is why a single state should decide who gets to be president of the united states. >> the court largely avoided discussion of whether january 6th was an insurrection. >> it's not like it's every day that people try to overthrow the government with violence. >> there is a recent section three has been dormant for 150 years,...
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. >> justice sotomayor justice kagan? >> i just want to understand your position and i want to narrow this to e paradigmatic socialed companies, nsfeed postings, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can aueith the fact is, but don't. [laughte suppe at i say for the most part, all these places say we are open for business, post whatever you like and we will host it. but there are exceptions to that and clearly contt sed exceptions which the companies take seriously. let's say we thinth misinformation of particular kinds is extremely damaging to societ misinformation about voting, about certain public health issues. so we also think hate speech or bullying is extremely problematic, so we are going to enforce rules against ts. if they will only apply to a small percentage of the in people want to post, for the most pt they are open for busine. bu we are serious about those content-based restrictions. son that world, why isn't a classic first amenen violation for the state to come in and
. >> justice sotomayor justice kagan? >> i just want to understand your position and i want to narrow this to e paradigmatic socialed companies, nsfeed postings, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can aueith the fact is, but don't. [laughte suppe at i say for the most part, all these places say we are open for business, post whatever you like and we will host it. but there are exceptions to that and clearly contt sed exceptions which the...
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when i was listening to the arguments, there was a point where justice kagan said why should the states make this decision. shouldn't be be left up to the federal side. i realized this question, this is what the ultimate decision is going to be. i would predict it's going to be a unanimous decision. probably even procure yum and they're going to decide it on a very narrow basis and i think it's going to closely mirror that question by justice kagan. >> do you think because john roberts is who he is and likes to be seen as moderate and not republican or democrat, not conservative or liberal, do you think that that will come maybe even the same day with the decision by the u.s. supreme court to not hear the immunity case and to defer to the u.s. appeals court decision that donald trump does not have immunity for prosecution? >> you know, i don't think that they're going to want to do it on the same day because then it does look like gamesmanship. >> right. >> so i don't think it would be the same day. whether they decide to deny cert or grant and then you know, leave the district court or
when i was listening to the arguments, there was a point where justice kagan said why should the states make this decision. shouldn't be be left up to the federal side. i realized this question, this is what the ultimate decision is going to be. i would predict it's going to be a unanimous decision. probably even procure yum and they're going to decide it on a very narrow basis and i think it's going to closely mirror that question by justice kagan. >> do you think because john roberts is...
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and the moment that i said to myself i've seen enough was when elena kagan point-blank asked jason murray her former clerk, why is it that you think that one state should be able to decide the presidential election for all states? that was the moment in which i knew that this argument was going exactly where we thought it was. everyone is just searching for something to hang their hat on interpretively or otherwise to get to that place. one thing i also found interesting in looking ahead in terms of what's coming down the pike, this is a court that heard argument today about the 14th amendment and trump's qualification for office while it knows that on monday or before former president trump will ask them to stay a d.c. circuit's ruling so that he can appeal their decision with respect to his immunity from prosecution. and that seemed to be very much on the justices' minds today, in particular justice kavanaugh searching to understand are there other ways in which barring impeachment, a former president can be made ineligible to hold office and he invoked a particular federal statute, 18
and the moment that i said to myself i've seen enough was when elena kagan point-blank asked jason murray her former clerk, why is it that you think that one state should be able to decide the presidential election for all states? that was the moment in which i knew that this argument was going exactly where we thought it was. everyone is just searching for something to hang their hat on interpretively or otherwise to get to that place. one thing i also found interesting in looking ahead in...
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host: you may be interested in the questioning from justice elena kagan, let's listen to what she said today in the oral argument. [video clip] >> i think the question that you have to confronts why at a single sta suld decide who gets to be president of the united states. in other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you owjust say it, it sounds awfully national to me. so whatever means there are to enforcitould suggest that they have to be federal, national means. if youer't from colorado, and youerfrom wisconsin or you were from mhin, and what the michigan secretary of state dad is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, i mean, that seems quite extraordinary. mr. murraynoyour honor, because, ultimately, it ts court that is going to decide that question of federal constitutional eligibility and settle the issue forheation. and, certainly, it is not unusual that questions of national importance come up through different states. justice k
host: you may be interested in the questioning from justice elena kagan, let's listen to what she said today in the oral argument. [video clip] >> i think the question that you have to confronts why at a single sta suld decide who gets to be president of the united states. in other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you owjust say it, it sounds awfully national to me. so whatever means there are to...
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just the fact the justice kagan asked about it at all mean that this ruling is foretold?is someone who knows these things, senior editor and legal correspondent for slate, also the host of the amicus podcast. great to see you. thank you so much for being with us. >> good to see you. >> is there anything that we have been talking about here tonight that has been like petting account the wrong way for you? feels like we have screwed up, got the wrong way around, or misunderstood? >> not at all. i might quibble with arteries destination wedding metaphor because to me it felt so acutely like a train in speed, where it's just hurtling from one crisis to another. we have a court that's in the midst of a legitimacy crisis. you've got a dobbs leak. even a bad investigation of the dobbs leak. you've got ethics scandals left and, right the first justice asking questions, had his wife testing mark meadows and trying to get state election officials to change votes. all of that is happening, and you sort of feel like the justices are like hurtling their bodies against the sides of the
just the fact the justice kagan asked about it at all mean that this ruling is foretold?is someone who knows these things, senior editor and legal correspondent for slate, also the host of the amicus podcast. great to see you. thank you so much for being with us. >> good to see you. >> is there anything that we have been talking about here tonight that has been like petting account the wrong way for you? feels like we have screwed up, got the wrong way around, or misunderstood?...
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that's why justice kagan raises one of these questions.to have a state have the power for who run since presidential elections? i think it was judge alito that this is one of the reasons they took up the case, they don't want this ambiguity and chaos among 50 states. >> we have seen this play out. this is all centered on colorado. it has national implications. what we saw happen in maine, where the secretary of state made that decision. she's not an attorney, bringing attention what she believes is the duties of her office. but they were, saying the main superior court, let's see what the supreme court was saying. it speaks to the gravity of the decision they are making here, how many states it could affect. >> this is what they are designed to do. they are designed to resolve constitutional questions. there is ambiguity obviously, there is ambiguity here because it has been litigated over a dozen states with different outcomes. also settling the law when there are disputes among the states. this is what they do. hopefully they can offer s
that's why justice kagan raises one of these questions.to have a state have the power for who run since presidential elections? i think it was judge alito that this is one of the reasons they took up the case, they don't want this ambiguity and chaos among 50 states. >> we have seen this play out. this is all centered on colorado. it has national implications. what we saw happen in maine, where the secretary of state made that decision. she's not an attorney, bringing attention what she...
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>> that's exactly right, justice kagan.we have implementing legislation, congress took up the legislation provided by griffin's case and established in the 1870 enforcement act, later repealed. the only enforcement legislation that's currently on the books is the insurrection criminal statute, section 2383 and when congress made all of these decisions, the initial enactment of the enforcement act in 1870, all of those were made with griffin's case as the backdrop. >> please -- >> the understanding was that these remedies would be exclusive of state court remedies. there didn't need to be because griffin's case provided the back -- >> if i could just understand the argument a little better, suppose that we took all of that away, you know, suppose there were no griffins case and there were no subsequent congressional enactment, what do you then think the rule would be? >> as a matter of first principles without the griffins case, it's a much harder argument for us to make. what we would argue in that hypothetical is that ther
>> that's exactly right, justice kagan.we have implementing legislation, congress took up the legislation provided by griffin's case and established in the 1870 enforcement act, later repealed. the only enforcement legislation that's currently on the books is the insurrection criminal statute, section 2383 and when congress made all of these decisions, the initial enactment of the enforcement act in 1870, all of those were made with griffin's case as the backdrop. >> please --...
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justice kagan? >> i just want tunrstand your position and i want to narrow ts to the paradigmatic social media companies, newsfeed postin, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can argue with the fact is, but don't. [laughter] suppose that i say for the most part, a tse places say we are open for business, post whaterou like and we will host it. but there are exceptnso that and clearly content based exceptio which the comni take seriously. let's y we think that misinformati oparticular kinds isxtmely damaging to society. misinformation autotg, about certain bl health sues. so we also think hate speech or bullying is extremely problematic, so we are going to enforce rules against this. if they will only apply to a small percentage of the things people want post,orhe most part they are open for business. but we are seriousbo those content-based restrictions. so in that world, why isn't classic first amendment violation for the state to come in and say we ar not go
justice kagan? >> i just want tunrstand your position and i want to narrow ts to the paradigmatic social media companies, newsfeed postin, facebook, youtube, twitter/x. suppose that i say, take this as a given, you can argue with the fact is, but don't. [laughter] suppose that i say for the most part, a tse places say we are open for business, post whaterou like and we will host it. but there are exceptnso that and clearly content based exceptio which the comni take seriously. let's y we...
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surely, that can't be ok. >> justice kagan? justice kavanaugh?> upon the deference to the legislative findings point, my memory is that there is a trial. >> yes, that's turner 2. maybe there will be a paxton 2. >> right, but there s't just congress said this, that is good to go, there was a trial about th? >> sure, we are happy to go to trial. >> that is all i wanted to ask. >> on common carrier, if a company says we are not a common carrier and we d't want to be, can the state make them into a common carrier? >> that's a great question. that was the first question i had when ce to this case. the answer is no. if you are not a common carrie yocannot become one. that is why it is important to think of it a compass to te you where the line is. i would urge the crtf you are interested, we he talked about reading the professor's article. e thing that struck me as strange was wait, they have terms of service allow can they be a comn rrier? th court addressed that very problem, the case that he cited is new york central v. lockwood from 1873 erthe cour
surely, that can't be ok. >> justice kagan? justice kavanaugh?> upon the deference to the legislative findings point, my memory is that there is a trial. >> yes, that's turner 2. maybe there will be a paxton 2. >> right, but there s't just congress said this, that is good to go, there was a trial about th? >> sure, we are happy to go to trial. >> that is all i wanted to ask. >> on common carrier, if a company says we are not a common carrier and we d't...
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because they're affecting -- ok. >> justice kagan >> i just have a quick question. so part of the dynamic that i think is going on in these cases is the fact that this regulation is enacted by the democratically elected representatives of state. and i suppose if the state's gution of these platforms gets too burdeomthen presumably the platforms can say forget it. we're not going to operate in your state. and thenhe citizens of the state would have thehance to determine if that's what they really wanted. that's sort of how i'm looki at this at a meta level. what caut attention was your response to the chief stice when you suggested that your cliencodn't withdraw from the state of texas, becse you read the provisions related to censorship and geography as ensuring that you don't do so. i had not read tt provision in that way. can you say more about why say more about why tt s your interpretation? >>ure. this is not do not discriminate against texans. the fact that it is preventing us from discriminating against someone inex is basically telling us that we cannot geo-f
because they're affecting -- ok. >> justice kagan >> i just have a quick question. so part of the dynamic that i think is going on in these cases is the fact that this regulation is enacted by the democratically elected representatives of state. and i suppose if the state's gution of these platforms gets too burdeomthen presumably the platforms can say forget it. we're not going to operate in your state. and thenhe citizens of the state would have thehance to determine if that's...
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here i think, and this is very much true of both justice kagan and jackson, they are constantly asking me the hard questions on my side, even if they do side with what i am, what i am arguing about. so, that itself was -- i think the problem was, they were looking for certain reassurance of the position -- wasn't going to be as extreme as colorado, unfortunately made it out to be. they were looking for some reason to take this grave step of confirming the colorado supreme court's decision. that's a momentous thing, you've got to reassure them, unfortunately there wasn't that reassurance. >> so catherine, let's talk about the appeals court ruling, the unanimous appeals court ruling decision, denying donald trump presidential immunity. how likely is the supreme court to take up that issue, do you think? >> oh i'm going to agree with what neil said, i think earlier this week. and i have never argued before the supreme court. i think there won't be for justices to take the case, and i'm happy to be wrong, if i am found wrong. i think this was such a well written, narrowly tailored decision
here i think, and this is very much true of both justice kagan and jackson, they are constantly asking me the hard questions on my side, even if they do side with what i am, what i am arguing about. so, that itself was -- i think the problem was, they were looking for certain reassurance of the position -- wasn't going to be as extreme as colorado, unfortunately made it out to be. they were looking for some reason to take this grave step of confirming the colorado supreme court's decision....
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here's a little justice kagan saying this is the reality. if we decide for colorado of what happens. >> i think the question that you have to confront is why a single state should decide who gets to be president of the united states. >> justice barrett followed up with her on that saying yeah, what this amount to, yeah, states are free to do what they want. you have to imagine that states see that colorado has done this, the high court approves it, they're going to take similar steps. so how many people get disenfranchised in that scenario. neil, they'll probably have a vote behind closed doors in the next day or two. we'll wait. i don't think it a thing that you wait till june. it's a high profile case. it's a matter of days or weeks before we have a decision. >> neil: shannon, thanks. other big story today, special counsel not seeking criminal charges against president biden for keeping classified material as he left the vice presidency. let's get the latest open that from david spunt at the justice department. hi, david. >> hi, neil. 345
here's a little justice kagan saying this is the reality. if we decide for colorado of what happens. >> i think the question that you have to confront is why a single state should decide who gets to be president of the united states. >> justice barrett followed up with her on that saying yeah, what this amount to, yeah, states are free to do what they want. you have to imagine that states see that colorado has done this, the high court approves it, they're going to take similar...
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president, yes, maybe some states would say well we'll keep him on the ballot anyway but as justice kagan said it will have the effect of colorado deciding. i want to push back a little bit it's a national thing because this court will decide it. you say that we have to review colorado's factual record with clearer orr as the standard of review. so we would be stuck, the first mover state here, colorado, we're stuck with that record and, you know, i don't want to get into whether the record -- maybe the record is great but what if the record wasn't. what if it wasn't a full some or just made by the secretary of state without a process as all. how do we review those factual findings? why should clear error apply? we made with mr. mitchell, too. it doesn't seem like a state call. >> three points. the first is ordinarily this court reviews factual findings for clear error. president trump made the point in his reply brief sometimes on constitutional questions this court can do something more like an independent review of the factual record and we would have no objection to that given the rec
president, yes, maybe some states would say well we'll keep him on the ballot anyway but as justice kagan said it will have the effect of colorado deciding. i want to push back a little bit it's a national thing because this court will decide it. you say that we have to review colorado's factual record with clearer orr as the standard of review. so we would be stuck, the first mover state here, colorado, we're stuck with that record and, you know, i don't want to get into whether the record --...
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. >> reporter: even elena kagan asked this -- >> i think the question you have to confront is why a singletate should decide who gets to be president of the united states. >> reporter: it was murray's first time arguing before the high court. he engaged in several contentious exchanges. even as a formal clerk, it disgust stop justice. >> reporter: he addressed reporters outside mar-a-lago. >> can you taye the person that's leading everywhere and say, hey, we're not going to let you run? i'm leaving it up to the supreme court. >> eek as he -- today, he appears poised to win at the supreme court a this question of ballot eligibility. this comes as the u.s. justice system today was a great day for candidate trump. wolf? >> paula reid, thank you very much. >>> i want to bring in our legal and supreme court experts for more analysis right now. joan biskupic, you were inside the supreme court during the three hours of oral argument. what stood out to you? >> how smoothly went not for the colorado voters' lawyer, but for the justices themselves. i am so accustomed to a lot of ideological tensions
. >> reporter: even elena kagan asked this -- >> i think the question you have to confront is why a singletate should decide who gets to be president of the united states. >> reporter: it was murray's first time arguing before the high court. he engaged in several contentious exchanges. even as a formal clerk, it disgust stop justice. >> reporter: he addressed reporters outside mar-a-lago. >> can you taye the person that's leading everywhere and say, hey, we're not...
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cox: have either of you gone hunting with the justice kagan?] justice sotomayor: i am a new yorker. so is she, but she has lost it. [laughter] she really has. there is no way you will get me up at the crack of dawn to sit in the woods. [laughter] gov. cox: maybe the audience is not aware of how justice kagan became a hunter. justice barrett: she assured, i can't remember what senator it was during her confirmation hearing, that she would learn to shoot a gun. she kept that pledge, and she had known justice scalia before she joined the court, because of her services at harvard. she said let's go hunting, you have to teach me how to shoot a gun. she found she enjoyed it and they did several hunting trips together. i have not enjoyed that experience yet. [laughter] golfing may have replaced hunting as her sport of choice. gov. cox: a litter safer than the hunting -- a little safer than the hunting. in other places you have rightly reminded us that civic participation is about much more than just politics. we are with politicians here, but what can
cox: have either of you gone hunting with the justice kagan?] justice sotomayor: i am a new yorker. so is she, but she has lost it. [laughter] she really has. there is no way you will get me up at the crack of dawn to sit in the woods. [laughter] gov. cox: maybe the audience is not aware of how justice kagan became a hunter. justice barrett: she assured, i can't remember what senator it was during her confirmation hearing, that she would learn to shoot a gun. she kept that pledge, and she had...
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secretary benson, you were mentioned by justice kagan during the arguments.whatever means there are to enforce it would suggest that they have to be federal, national means. why does -- if you weren't from colorado and were from wisconsin or you were from michigan and it really -- what the michigan secretary of state did is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, i mean it seeps quite extraordinary, doesn't it? >> if i am not mistaken, your former law school professor giving you a little shout out there. talk about this national question, whether one state should be able to have this influence on a national election. >> yes. justice kagan was my former law professor, and so i appreciated the elevation of michigan today and a recognition of the point she was trying to make which i agreed with, which is the importance of clarity for voters nationwide on who is permitted to serve and who should provide that clarity. in my view, one of the themes of today's oral arguments was the issue of ambiguity
secretary benson, you were mentioned by justice kagan during the arguments.whatever means there are to enforce it would suggest that they have to be federal, national means. why does -- if you weren't from colorado and were from wisconsin or you were from michigan and it really -- what the michigan secretary of state did is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, i mean it seeps quite extraordinary, doesn't it? >> if i am...