trump. thank you, everyone. [captions copyright national cable satellite corp. 2023] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> members taking another short break before returning for a vote at 6:30 eastern. we'll have more live house coverage then here on c-span. >> since 1979, in partnership with the cable industry, c-span has provided complete coverage of the halls of congress, from house and senate floors to congressional hearings, party briefings and committee meetings. c-span gives you a front row seat to how issues are debate and decided with no commentary, no interruptions, and completely unfiltered. c-span, your unfiltered view of government. >> c-span is your unfiltered

view of government. we're funded by these television companies and more, including charter communications. >> charter is proud to be recognized as one of the best internet providers. and we're just getting started. building 100,000 miles of new infrastructure to reach those who need it most. >> charter communications supports c-span as a public service along with these other television providers. giving you a front row seat to democracy. host: joining us is r from -- before we go into details about it the 14th amendment itself, can you give a

history or a background on how it came to be. guest: one of the main goals of the republican party after the civil war was to make sure loyal people ruled both the united states and the former confederate states and one way they thought to strike at the slaveholding class was to pass a constitutional provision that said any former or present ste or federal officeholder who participated in a rebellion is forever disqualifie holding office in the united states unless the disqualification was removed by a two thirds vote o parties of congress. host: many times since its inception hasn't been applied? guest: there has been a spate of

applications early on but after 1872 when congress amnesty to almost all persons subject to section three, the only time it was applied until recently was to a representative, victor berger in 1920. then it was applied last summer to a county commissioner in new mexico who was at the insurrection, cody griffith. host:host: when you hear the arguments or calls for applying the amendment directly to former president trump, would do you make of those calls and doesn't have a basis -- does it have a basis? guest: it does have a basis. there have not been a lot of insurrections in the united states since the civil war and the insurrectionists have not run for office.

everyone agrees that trump is a former officeholder in the united states. there is a good deal of evidence that he participated in the insurrection. if so then he is disqualified from holding office under section three of the 14th amendment, which is as much a part of the constitution is the first amendment. host: you said you are not an expert in the evidence, but as far as what you have seen or heard over the last several months or years, what did he do in order to make the 14th amendment apply in your mind? guest: several things. first, he appeared to have egged on the effort to storm the capitol. he second, appear to have known or had evidence that this was happening. he did not use his powers to stop this. he seemed to engage in the

insurrection as engagement was understood by section 3. one of the features of the american law of insurrection is anyone who is involved, even if they are not at the actual scene of the insurrection is an insurrectionist. host: by the speech that he gave ed what he said or did -- dave and what he said or -- gave and what he said or did not say is what qualifies him for insurrection? guest: he gave the speech knowing that this was likely to incite an insurrection against the united states. host: as far as the application is concerned there was a case in new mexico where someone running for office was taken off the ballot. i think you are part of that by

extension. can you explain what happened in that situation? guest: this was an existing county commissioner. he was not on the ballot. he was removed from office. the reason why was very clear. he participated in the insurrection. he participated in encouraging people to use force and violence against capitol police officers in an attempt to storm the capitol. there was agreement january 6 was an insurrection. he participated. that was sufficient to disqualify him under the 14th amendment. i was the expert on section three. host: who brought the case against the official? guest: the committee for responsibility and ethics in washington or crew for short.

host: there was a piece on cnn. "the broad interpretations of the clause went too far as far as who could be ensnared by it. one not need to have personally used force fall under this clause. one can use words that provoke insurrection. this view of the insurrection could in theory apply to a politician who speaks empathetically of protesters in a protest that eventually turns violent." guest: that person is mistak en on the law of insurrection.

if for some reason someone is particularly angry at this conversation and burns down the local television station, we are not responsible because we had no reason to know where desire that outcome -- know or desire that outcome. it is another thing when someone speaks with the intention of provoking an insurrection. when a person says we need to be peaceful and some people old in the rally -- people in the rally are not peaceful, that is not incitement. host: if you want to ask him questions about the 14th amendment, here is how you can ask him. it is (202) 748-8000 four democrats. -- it is (202) 748-8000 for democrats. republicans, (202) 748-8001.

independents, (202) 748-8002. do you see a scenario playing out on specifically how the 14th amendment would be used against the former president? what is the likely scenario in your mind should it happen? guest: it is already happening. a lawsuit by crew has been filed in california. a few other lawsuits have been filed in other states. it would not surprise me if a number of states disqualify. likely the issue will come before the supreme court. chances are the supreme court will try to move this case very host: is there a scenario how it would be used against the former president and is there a scenario in mind how it should guest: a lawsuit has been filed in colorado, a few other attorneys have filed lawsuits in

various states. it would not surprise me if a number of states disqualify and other states do not and likely the issue will come before the supreme court. chances are the supreme court will try to move this case very quickly so we can clearly know what's going on before the final election season really begins. host: as you alluded to, it's the front page of "the washington times" that highlights the fact should this process begin it would end at the supreme court given the current makeup of the supreme court how do you think it will influence the final results should it happen? guest: one can simply say six republicans, three democrats, 6-3 trump stays on the ballot. but for a great many republicans in private, trump is an albatross although they do not say this in public, so it might

be two justices, republican justices on the supreme court say the person did participate in an insurrection, he is disqualified, let's get this albatross off the republican's back. host: mark graber, a constitutional law professor and author of the book "punish treason, reward loyalty, the forgotten goals of confederation after the civil war." first call is irene from colorado, democrats line, on with professor graber of the university of maryland. go ahead. caller: i was asking about marjorie taylor greene, why wasn't she taken off the ballot when they pressed charges against her and the new mexico guy wasn't on on on the ballot when they took him off. i'm a democrat and i'm curious,

how did she get re-elected? guest: the answer first is remember, this was not being taken off the ballot but removed from office and the question becomes was a 14th amendment suit filed, how was it adjudicated? i don't know the specific case in colorado, chances are no one made the 14th amendment point so, for example, if my new grandson, who is almost two months old runs for office and no one objects he gets in though he's not wall find for office. someone must begin the process of disqualification and chances are that didn't happen in colorado. host: california, that's where vicky is, republican line. caller: i just wondered what would happen if millions and millions of people boycott the

election, that's what can happen if you take trump off the ballot because he's got millions of supporters. that doesn't sound constitutional to me and don't think he committed any crimes and i don't know why c-span has this guy on, he's so biased you could take him off a tree and he would stick. host: there's vicky's opinion. guest: i can't climb a tree but if trump is off the ballot, everybody can still vote. so this is not an attempt to disqualify people. you can vote for people. who endorse trump's policies. and if trump is -- or there's an effort to disqualify trump, there should be a hearing. and in fact, if trump did not

participate, as you say, in the insurrection, he will not be disqualified. host: you've heard and probably seen the former president responding to these efforts, whether it be his various -- the indictments against him or this effort specifically calling it election interference. what do you make of that claim? guest: well, what is called election interference is simply enforcing the constitution. now, again, i am not an expert and trump may have defenses, he did not participate in an insurrection. but what the 14th amendment says, if you have such contempt for constitutional democracy in the united states that you resist the law by force and violence, you should not be a governing official in the united states.

so the question is, did trump resist the implementation of the election act, the constitutional rules for electing a president. did he participate in a resistance by force or violence? if he did, he should be disqualified. if he didn't, he should be on the ballot. host: let's hear from steve, independent line, next up. caller: good morning, everyone. my question for the gentleman scholar is, is a conviction required for this? i'm just a lay person in my understanding of the constitution classes that it's filled with due process and rights and freedom of speech for people and we presume innocence before guilt and my concern is i'm not a fan of donald trump by any means but i'm concerned about the process here as an

american citizen that someone could be banned from running for office without a process in place through the court system or is my understanding wrong on this? i would love to hear from you. thank you. guest: you're absolutely right. there's a need for a process and in the griffin case in new mexico, there was a trial where crew had to put on evidence that griffith had participated in an insurrection and mr. griffith had the full opportunity to refute that evidence. so while section 3 is not a criminal provision, it's a civil provision and nevertheless requires some kind of heari where there is evidence, where th is a chancefute the

evidence, so mmp gets disqualified only if people can prove in a court of law he participated in an insurrection. host: georgia's secretary of state brad rothesberger, for a secretary of state to remove a candidate would enforce the system as rigged and corrupt and denying the chance to choose is un-american and our government believes it has earned the consent of the governed and taking away the ability to choose or object eliminates that consent for lightly less than half of the country." guest: the problem is the constitution removes choices. you may being -- think a 33-year-old is the best qualified person to be president or a person not born in the united states.

but that person is ineligible under the constitution. remember, we're not just simply talking about choice in 2024 but also in 2028. if a person has shown such contempt for constitutional democracy that they have tried to overturn the results of a legitimate election, if they are elected president, can you guarantee a legitimate election in the next four years? so we're talking about what is the best decision for the overall health of constitutional democracy in the united states, not simply in 2024 but going forth in the future. hannah: from illinois, victoria is next, on the line.

caller: my question is for mr. graber. i understand that it is to aid and give comfort to insurrectionists and that's been proven because president trump is said, we love you, go home, after they committed this horrible crime and then proceeded to support them after they were jailed, and he even claims that he will pardon them if he gets to be president again. so that's my question. is that just as important to give aid and comfort as it is to participate? thank for you taking my call. guest: a technical point about both treason and section 3 of the 14th amendment. treason can be giving aid and comfort to the enemies of the united states. that refers to a foreign nation. so if i were to sell nuclear

secrets to north korea, i have given aid and comfort to america's enemy. and an insurrection is something that is done by the citizens of the united states. the constitution does not say simply aid and comfort, it actually requires you participate in some way so the mere fact i cheer on the insurrectionist is not likely sufficient. what has to be shown what crew and other organizations have to show eventually in a court of law that donald trump participated and not merely donald trump said go to it. host: from new jersey, pat, you're next. caller: hello. you said earlier president trump did not to prevent the violence

from happening but he offered nancy pelosi the opportunity to post a national guard but she turned him down, she and schumer turned her down. he did nothing to obstruct the peaceful transfer of power. he was president and when his term was up he left the white house. the claims are highly objective. guest: he actively encouraged the insurrection and did things to further the cause of the insurrection. those are facts not yet proven in a court of law. what i can say in my expertise is in the 19th century american legal history is that if these facts are proven, trump should be disqualified. these facts are not yet proven.

host: it's a separate issue, mrs it matter the president wasn't charged in jack smith's case either as inciting judicious conspiracy. guest: no, the people disqualified were not charged criminally. remember, criminal is different than civil, among other things, in a criminal case you need beyond reasonable doubt and in a civil case, preponderance of evidence. and prosecutors charge people for a lot of different reasons. so the crucial question is thought what's going on in the criminal cases, it's is there sufficient evidence to demonstrate by a preponderance of the evidence that trump participated in an insurrection. hannah: our conversation with

host: our conversation continues and you can post or text us at 202-748-8003. this is from immanuel from washington, independent line. caller: yes, thank you for letting me speak my voice. and for watching your program. my reason for calling is the insurrection on the 6th, those that got there, somebody called them to come to disrupt the proceedings of a new -- of the election. now, to come on that order of somebody, that person, who asked them to come should not be prosecuted and if he's not going to be prosecuted, why are they prosecuted for coming? guest: you made another good

factual point. why were the people there? who organized them? how did they get there? again, i'm not the fact expert. what i can say is any person who organized people for the purpose of engaging in an insurrection, that person, if they are a former or present office holder is disqualified. is donald trump that person? i don't know. we have to wait to see what the evidence sees. but any person who did do the organization, knowing of the probability of an insurrection would be disqualified if they meet the other directions of number three. host: what evidence has been brought in order to ensure a conviction, so to speak, in this

case, that someone was deemed unqualified because of the 14th amendment? guest: in the koe griffith trial for something unseen to most people, mr. griffith had a private photographer takes pictures of him crossing the barrier, taking pictures of him urging violence against police officers. so that was the sort of evidence. in the early congressional cases and state court cases, people presented evidence, this person, for example, purchased a substitute to fight in the confederate army. this person was an officer in the confederate government. it's unusual evidence you would expect at a hearing to determine whether a person participated in

an insurrection. there is evidence and exhibits and the usual law stuff. host: if that's the case, then -- it's speculative at best but what type of evidence would have to be brought against the former president in order to make it stick? guest: i would suspect the evidence that was used in the collect committee for january 6th. you would see film of president trump's speech. you would have testimony about what president trump did before or after january 6 to show he was not simply just a observer in the events but a participant in the events. host: tom in florida, democrats line, you're next up. thank you. caller: thank you, pedro. good morning, mr. graber.

i have a particular question. you hear this a lot now about judges that count the number of republicans or democrats and how the case will be decided. i'm a liberal democrat but i don't particularly like that and there are judges that i may not like that are selected by people i didn't vote for but when they're judges, i want them to -- i want them to live in a country that will not toe the line of the law. all of us are moving too much towards the business of who appointed them and how they'll decide because of that. in this case here, how does it stack up in this law with the federalist society and what they've been saying now for 40 years or so and their theory of law in the original list and all that, you're a professor of law, how does this stack up with them

as opposed to where i always grew up thinking the constitution was a living document and can be interpreted different ways as we move on as a nation in our history. host: thanks, caller. guest: first, your point is well taken in one sense we do not want judges who are representative of the democratic party or republican party. on the other hand, we have to expect that if a president believes, say, the constitution grants the right to an abortion, the president is likely to appoint judges who also believe that and similarly if the president believes the constitution does not protect a right to abortion, the president is likely to appoint judges who believe that. so put me on the court and i'm

likely to vote for abortion rights, not because i'm paying tribute to the democratic president who appointed me but i believe the constitution in some way protects abortion rights. now the question is, no one was put on the court for their beliefs about section 3. if you adopt an originalist approach as many of the conservatives do, section 3 is very, very broad, as alluded to in a cnn piece, republicans in 1865 did not have broad notions of free speech, happy birthday, president davis was a fact of treason, we don't think so. but if you go by the original understanding, participation is broadly understood. so the question will be, are judges who are originalists when declaring there is no

constitutional right to an abortion, will they also be originalists in interpreting section 3 of the 14th amendment? i don't know. host: that depends how the lower courts i suppose react to this, should it go up the line that way? guest: that's correct though it would not surprise me to see the supreme court do what they've done in some cases, for example, the covid cases and some immigration cases and grab these cases quickly from the lower federal court. so in some ways skipping a line of decision. host: the university of maryland law school is where our professor teaches, he's a constitutional law professor, mark graber for this discussion. let's hear from mary, from michigan, republican line, our guest, go ahead. caller: good morning. thank you for having me. i am a conservative republican. i am an educated college woman.

i am an owner after small business. and a mother of three children. and i am just appalled at how many educated christian people can in any way, shape, or form support a candidate like trump because he clearly in my eyes has broken the law in numerous ways, not just insurrection, but putting pressure on the georgia person in charge of the votes to get additional votes. he's, in my opinion, a liar, a narcissist. he's power hungry.

i just can't believe that there are intelligent people out there who would want to vote for him again. and it really is just a disservice to our party and our country. host: do you have a question related to the 14th amendment for our guest? caller: i believe that the 14th amendment has been broken by trump, i really do believe that he -- i watched the hearings and really do believe he broke the 14th amendment and he should be charged. and he really should be in jail. host: that's mary there. professor, if you want to respond. guest: here is the issue, and i'm on a different side of a political fence and very hesitant about giving advice to people on the other side. but as you point out, mr. trump

comes with severe liabilities. even if the eyes of many people who agree with lots of his policies. and so the question is do you want to support a person with such contempt of the law and the rules of cooperational democracy when you have -- constitutional democracy when you have plenty of other people on your side of the fence who will defend your policies with more integrity? given my politics, i'm not a big fan of the other people running for president op the republican side but i would not disqualify any of them but would vigorously oppose to disqualify any of them and the american people have a

right to vote for all of them because they'll play by the rules of the rules of democracy broadly understood. host: before we go to robin, professor, if one of the convictions -- or charges against the former president stick, one of the four indictments, we've asked people over this over the years, does the constitution still allow him an avenue to the presidency, do you think? guest: yes, eugene depths ran for presidency in jail and got over a million votes. had he been elected, it would have been complicated how you serve in prison, but he would have been president of the united states. host: let's hear from robin, robin in alabama, independent line. hi, there. caller: hi, how are you doing? i have three questions. i wonder how -- would a protest to a riot be an insurrection? question two would be, do you believe the january 6 committee

was a legit committee? and the third question is, do you believe that president trump was guilty of insurrection? thank you. host: good questions. guest: the common law distinguishes between a riot and insurrection. a riot is a spontaneous outbreak of violence, and an insurrection is a planned attempt to resist the execution of a law by force or violence for a public purpose. so a riot just -- you're angry at a police officer and you throw a brick. an insurrection, you are trying to prevent people from executing a law. was january 6th an insurrection

select committee? republicans were given an opportunity to be on the select committee. all you can do is read their report and decide for yourself. to me the report reads right. you may disagree if you read it. i think the evidence tends to show, from what i've read, that donald trump knew about the probable insurrection and provided what assistance he could from the white house, but again, i've been following this from a distance. i'm mostly concerned about the history of insurrection, that it could easily be the evidence will show my initial beliefs are wrong. that's why we have trials and hearings. host: you said you were -- then they asked if you thought if he was guilty, the caller asked. guest: yeah, yeah, guilty is the wrong word because it's not a

criminal trial, but if you said give me an answer now, i would say disqualified, but the better answer i think would be i'd like to hear the evidence, more of it. i'd like to hear mr. trump respond to the evidence and then make up my mind. host: you said you were involved in that one case involving crew who brought the suit against the new mexico politician, correct me if i'm incorrect. but do you plan to be involved if crew does bring a case against the former president himself? guest: that's up to crew. i'm right now writing up a micas brief on the history of common law insurrection in the united states. it may just prove to be a piece of paper that winds up in an obscure academic journal and it

might be crew uses it or mr. trump finds some use for it. i don't know. that's for the future to decide. host: from new jersey, democrats line, this is joe. caller: good morning, thank you for taking my call. sir, i'm wondering if the fact that both the speaker of the house at the time and trump's family members, people who were in political positions as well as people who knew him personally called him on that day and asked him to please ask the rioters to stop or to go home, and he did not do so immediately. does that in any way speak to his culpability? guest: what you presented is that is evidence that mr. trump was in fact doing what he could do in his office to further the

insurrection. it's evidence and it's relevant. whether it's positive is for a tryer of fact to determine. host: you probably heard the name of jonathan turley over the weeks and months of this topic being brought up and was on fox news recently making the case against -- pushing against using the 14th amendment and was in response to the comments made by adam ship on msnbs but here's what he had to say and i want you to responsible to it. [video plays] >> does getting a less leaning states attorney general as ad am ship was referring to, getting them involved, does it give the 14th strategy any more credibility? >> i don't think it does. there are academics that have thought about -- we're going to leave this as the house gavels back in for votes.