Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Some of you know, our show is preempted yesterday for live coverage of the oral arguments at the Supreme Court on Donald Trump and the insurrection clause of the Constitution. The question was, can Colorado ban Trump from the presidential election ballot because he engaged in an insurrection or gave aid and comfort to insurrectionists as the 14th Amendment said would be disqualifying? The Colorado Supreme Court has, in fact, barred him from the ballot in that state for exactly those reasons. Trump appealed to the Supreme Court. Yesterday, the lawyers for the two sides fought it out.

Now, expert consensus seems to be that Trump won and Colorado lost, but let's see what our guest this morning thinks as we play a few key excerpts and also discuss two other high-stakes legal goings-on at the same time, the appeals court ruling on whether Trump is immune from prosecution for anything he did as president, even fomenting an insurrection if he were to be found guilty of that, and the Biden classified documents report issued by a special counsel yesterday. This was on so few people's radar, but it created a firestorm over the conclusion that while Biden did not commit a crime that he did display memory problems in his five hours of testimony. Biden angrily denounced that finding last night as we will hear in a clip that we will play.

Back with us now is Emily Bazelon, Yale Law School lecturer and senior research fellow, New York Times Magazine staff writer and Political Gabfest co-host for Slate, and author of two bestselling books, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration and Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy. Emily was last with us yesterday morning to preview the Supreme Court hearing. Thanks for giving us your time two mornings in a row, Emily. Welcome back to WNYC.

Emily Bazelon: Thanks for having me. My pleasure.

Brian Lehrer: Are you down with a consensus opinion that almost none of the justices were having this Colorado finding?

Emily Bazelon: Yes, I wish I could say something contrarian, but it seems like it was at least 8:1. Sonia Sotomayor was the only justice who seemed really interested in the idea of disqualifying Trump from the ballot or rather allowing Colorado to do so.

Brian Lehrer: I want to play what might be the only two minutes we even need to hear from yesterday to get a sense of why that is of where most of the justices are going on this. What we're going to hear is Justice Elena Kagan, one of the usually liberal justices, challenging the lawyer for the Colorado side, Jason Murray. We'll hear Justice Amy Coney Barrett get in on this interaction too, but it's Justice Kagan who starts it off.

Justice Elena Kagan: 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. In other words, this question of whether a former president is disqualified for insurrection to be president again, just say it, it sounds awfully national to me. Whatever means there are to enforce it would suggest that they have to be federal national means. If you weren't from Colorado and you were from Wisconsin or you were from Michigan, what the Michigan Secretary of State did is going to make the difference between whether Candidate A is elected or Candidate B is elected. That seems quite extraordinary, doesn't it?

Jason Murray: No, Your Honor, because, ultimately, it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation. Certainly, it's not unusual that questions of national importance come up through--

Justice Elena Kagan: Well, I suppose this court would be saying something along the lines of that a state has the power to do it, but I guess I was asking you to go a little bit further and saying, "Why should that be the right rule? Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?"

Jason Murray: Because Article 2 gives them the power to appoint their own electors as they see fit. If they're going to use a federal constitutional qualification as a ballot access determinant, then it's creating a federal constitutional question that then this court decides. If this court affirms the decision below determining that President Trump is ineligible to be president, other states would still have to determine what effect that would have on their own state's law and state procedure in terms of ballot access.

Justice Amy Coney Barrett: Well, if we affirmed and we said he was ineligible to be president, yes, maybe some states would say, "Well, we're going to keep him on the ballot anyway," but really, it's going to have, as Justice Kagan said, the effect of Colorado deciding--

Brian Lehrer: Justice Barrett there, Justice Kagan before her with Colorado lawyer Jason Murray. Emily Bazelon is our guest. Just playing that clip, this is one of those segments where I didn't give out the phone number, but all our lines are lit. We will get to some of you at 212-433-WNYC or you can text. Emily, that seemed to me to be the central issue yesterday. How can one state do this on their own? How did you hear that issue or that exchange?

Emily Bazelon: Yes, I think that was the whole crux of the matter. What you see here is agreement, of course, between two wings of the court. Justice Kagan and Justice Barrett and other justices were equally concerned about this question of having states be in the role of disqualifying someone from running for office. Then there are various elements of the text of Section 3 of the 14th Amendment that start coming into play in terms of how the court would basically head off this Colorado decision.

Brian Lehrer: Here's a text from a listener who asks, "Why didn't the Colorado lawyer bring up the year 2000 presidential election?" Florida in 2000-- sorry, this already popped off my screen because we're getting so many texts. Why didn't the Colorado lawyer bring up 2000 as an example of an election decided by a single state even though Bush lost the popular vote? That, of course, was Florida.

Emily Bazelon: Right. I think what your listener's getting at is Bush v. Gore was this moment in which the Supreme Court intervened dramatically, in essence, having an effective helping George Bush take office. Bush v. Gore is kind of famously a one-way ticket. It says that in the text of the opinion. It wasn't directly on point for the argument yesterday. I would imagine that a lawyer might be hesitant to bring it up cause it's a little bit of hoisting the Supreme Court on its own petard in a way that might not actually win you a lot of votes, although I understand the kind of frustration the listener feels about this underlying potential paradox.

Brian Lehrer: It seemed to me that a point of pushback could have been, but maybe for the reason you just gave on the Bush v. Gore case. The Colorado lawyer didn't want to go there because it would be seeming to be sticking it to Supreme Court justices, but the conservatives on the bench who would be very inclined towards states' rights and states being able to do things on their own.

One could argue that they should look at this as, "Well, if Colorado determines that by their standard, Trump committed insurrection and, therefore, is disqualified from the ballot," and some other states don't decide that, but some other states do. Therefore, Trump doesn't have enough electoral votes to win the presidency because he's not on enough states' ballots. Well, that's the way the cookie crumbles because the states get to determine these things and federal elections are, in fact, administered by the 50 states.

Emily Bazelon: Yes, there absolutely is that argument. It is out there. You are absolutely right that often conservative judges are the ones concerned about the rights of states in our federalist system. It went the other way yesterday. You have Chief Justice Roberts very vocally saying, "Well, wait a second. The 14th Amendment was all about augmenting the power of the federal government and constraining the states."

In this context, why would we give the states the kind of authority that you just outlined? This is an argument that goes maybe further than the court really wants. Justice Sotomayor pointed out that there have been instances in which states have disqualified candidates for running in state elections based on the 14th Amendment. The question here is whether states have that authority with regard to a federal election.

Brian Lehrer: Here's Steven in Manhattan with another example of that refuting the justice's leanings. Steven, you're on WNYC. Hello.

Steven: Hello. I was saying the same thing. It seems that the court didn't want to take its power to decide differences that occur between states. One state does one thing. Another does another. You cited some of them being all the way from the Gore v. Bush decision in Florida, where Florida was the one state that decided that election to what happened just two days ago in Nevada, where Haley was not allowed to be in the caucus by the state laws because she was in the primary or the other way.

Brian Lehrer: Steven, thank you very much. All right, Gary in Queens is going to raise another issue with respect to this case. Gary, thanks for calling. You're on WNYC.

Gary: Oh, hi. Hi, Brian and Emily. I have a question and a one-sentence comment. When will any court decide whether or not it was actually an insurrection by any definition? The other comment I have is that if memory serves, the Supreme Court voted 7-2 that the Florida Supreme Court had violated Florida state post-election deadline rules. I think they voted 5-4 to remand. Am I incorrect?

Emily Bazelon: To take your first question-- Wait a second. It may have gone out of my head. [chuckles]

Brian Lehrer: Oh, the question about determining in a court of law whether it even was an insurrection. I think the Trump lawyer yesterday was arguing it wasn't an insurrection, it was a riot, but that's different than a concerted attempt to overthrow the United States government.

Emily Bazelon: Right, yes. Thank you. Okay, so the Colorado Supreme Court found that Trump engaged in an insurrection. Then Trump's lawyer yesterday, you're right, Brian, was saying, "Well, it wasn't an insurrection, but even if it had been, my client didn't engage in it," which is what you'd expect. Although it was remarkable how little time was spent on the whole insurrection, the heart of the matter, because I think the justices are not interested in going there.

They are looking for a different exit ramp from this case. When you go back to Bush v. Gore, the main holding in Bush v. Gore is that the way that Florida was counting its votes violated the equal protection clause of the 14th Amendment. This idea that they were doing it in this uneven fashion, so people's votes weren't being counted equally. It was a pretty strange piece of reasoning, but that's what the court said.

Brian Lehrer: Yes. I think the Trump lawyer said this wasn't an organized insurrection and then one of the justices says, "Well, if it was a chaotic insurrection, would that have been okay?"

Emily Bazelon: Right, yes.

Brian Lehrer: Who says Supreme Court justices have no sense of humor?

Emily Bazelon: [laughs] Exactly, right. They're not really interested in ruling on whether this was an insurrection and whether Trump participated.

Brian Lehrer: I have found this and I watched the whole thing. I had the same impression as you. Where's the talk about the insurrection and whether Trump engaged in an insurrection? Because the Colorado court found that he did. I've actually thought that this is one of Trump's stronger points that though they didn't really hash it out yesterday that he's not been charged with insurrection. Jack Smith, the special counsel, could have charged him under insurrection laws. He didn't do that and there wasn't, you told us yesterday, a really robust evidentiary hearing in Colorado as to whether he committed an act of insurrection.

Emily Bazelon: Yes. The justices actually made fun of the proceedings in Colorado because they weren't fully airing this question. I think you're getting at this fundamental tension here, which is that if you haven't been criminally charged or convicted for something, how can you have this other major consequence for it when it hasn't been fully vetted in court in the way that we expect when someone is found guilty beyond a reasonable doubt. That, I think, is you can just decide to stop there. That can be your read on this case.

The other way to think about it, though, is that disqualifying someone from running for president is really different from convicting them from a crime. It's okay to have a different evidentiary standard, right? We have all kinds of proceedings in which you get in trouble for something in civil court that you haven't been convicted for criminally. For example, E. Jean Carroll's whole defamation lawsuit against Trump is predicated on the idea that he committed sexual assault, but the finding that supports that is not a criminal finding. It's a lower standard of civil proof. We do have examples of that, but you might still not buy that that's the right answer in this case.

Brian Lehrer: Yes. I'm not saying Trump didn't commit insurrection. I'm just saying there wasn't a finding or an actual real process toward a finding like I think there was in the E. Jean Carroll case, even though it was a civil suit, to come to that conclusion yet. I want to play one more clip from yesterday. It's of Justice Kavanaugh, who raised an issue that, to my ear, was not a constitutional one, I don't think. It was more of a political or a civic one perhaps about democracy. Here's that.

Justice Kavanaugh: What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide? Because your position has the effect of disenfranchising voters to a significant degree. Does that come in when we think about, "Should we read Section 3 this way or read it that way?" What about the background principle, if you agree, of democracy?

Jason Murray: I'd like to make three points on that, Justice Kavanaugh. The first is that constitutional safeguards are for the purpose of safeguarding our democracy, not just for the next election cycle but for generations to come.

Brian Lehrer: That was an interesting answer to me by the Colorado lawyer. It's okay to disenfranchise people from this election if you've got your eye on a larger ball, which is making sure there isn't an insurrection that destroys the democracy completely. I was also interested, Emily, in the fact that Kavanaugh raised this at all because I think it's, correct me if I'm wrong, not a constitutional question, but it is one that's on a lot of civically-minded people's minds, which is do we really want the courts telling everybody that they can't vote for Donald Trump?

Emily Bazelon: Right. It's not going to be the main basis the court decides the case, but they could talk about this as a kind of supplemental issue that's on their minds, that's in the background here. The tape from Jason Murray, the lawyer for the Colorado voters about the long-term future of democracy, may get played a lot in the future if Donald Trump gets reelected and messes up our democracy in some way, right? This notion that majority rule one time is not really the full definition of a democracy. It needs to keep going.

I think that Jason Murray was arguing that the framers of the 14th Amendment were concerned about that. They thought it was okay for certain people not to be able to be elected given what they had done and also because the nation was at this precarious moment after the Civil War, where people's loyalty mattered a great deal. They couldn't afford to just leave it all up to the voters. I think what Kavanaugh was suggesting is that we are not in a similar moment and that the democratic rights of Trump supporters outweigh those longer-term questions. He's focused on them and the idea of disenfranchising them.

Brian Lehrer: Let me get one quick thought from you on the other big ruling this week that was actually a ruling on presidential immunity from the Court of Appeals. Then I want to get to what might be the biggest story of the three in terms of the presidential election campaign right now. That was the Biden special counsel on his classified documents and what he wrote about Biden's memory. Presidential immunity, the DC appeals court was not having that at all with respect to Donald Trump, right?

Emily Bazelon: Right. You have a very thorough 57-page opinion from the DC Circuit in which they take all the arguments seriously, even though some of them are really pretty specious and they say, "This cannot be. We cannot have a rule of law in America where the President can never be held criminally liable for anything he does while he's in office." That is what they said no to. It's pretty obvious and basic.

Honestly, the big question going forward is just how much time it's going to take for the further layers of review to play out because the clock is ticking. If this matter isn't settled quickly, it's going to be very hard for Judge Chutkan, the trial judge overseeing the prosecution, this particular prosecution of Trump. It's going to be hard for her to set a trial date and get everything moving again. If, particularly, the Supreme Court takes the case, then it takes a long time with it.

Brian Lehrer: Since it seems so obvious to so many people, of course, I have no idea what's obvious to Clarence Thomas or Neil Gorsuch or some of them, but it seems so obvious that if you're president of the United States and you go out and rob a bank, they can't prosecute you for it. The idea of this blanket presidential immunity, the way Trump is trying to claim it and the very logical point-by-point, serious-minded rejection of that by the Court of Appeals, the Supreme Court, which I think has to get Trump's appeal by Monday, they could just say, "No, we don't take this case. Court of Appeals ruling stands." It can happen very quickly or could it?

Emily Bazelon: Yes, that could all happen. I think it's important to preserve the space for that very plausible outcome. Some of the people who've been talking about this have said, "Well, this is a former president asking for a review. It would be very unusual for the Supreme Court to refuse that, just given his former role," or "Well, they won't be able to resist weighing in on this because it's such an important national question." They really could resist.

They could just let this DC Circuit opinion stand and move on or they could do something extremely quickly. In some ways, and this is a political consideration, I admit not a legal one, but in some ways, the fact that the ballot case is so clearly looking like it's going to go in Trump's favor makes it easier for the Supreme Court to say, "The President is not immune in this blanket way," or to just stay out of it and let the DC Circuit say that.

Brian Lehrer: Now, the Biden classified documents special counsel. There was a Biden special counsel on classified documents? Wasn't it Trump who took classified documents?

Emily Bazelon: Well, right. It does start with Trump and really with Trump's unwillingness to get those documents back and very much obstructing the government's efforts to get them back. Remember that Biden has some documents in his garage. That prompted Merrick Garland, the attorney general, to appoint a special counsel, I think, in a sense of wanting to be absolutely fair and treat both sides with the same kind of consideration. Although in light of the political trouble from the special counsel court, I wonder how the Justice Department is feeling about the decision to appoint a special counsel at this point.

Brian Lehrer: Right, so they found that Biden did willfully take classified documents, but nothing that he did rose to the level of a crime, so he's been cleared in that way. What's breaking out is the big news story is that the special counsel concluded that when he interviewed Biden, Biden had memory problems. He couldn't remember the years in which he was vice president or quoting from the report even within several years when his son Beau died, which was 2015. Biden reacted to this by holding a news conference yesterday. Here's just one little clip or just a little piece of an angry exchange or angry reaction he had to a question from a CNN reporter.

CNN Reporter: Many American people have been watching and they have expressed concerns about your age--

President Joe Biden: That is your judgment. That is your judgment. That is not the judgment of the press.

Brian Lehrer: I don't think he meant that is not the judgment of the press. I think he meant that is not the judgment of the people or maybe he meant that is not the right of the press to make that judgment. I'm not sure what you think he meant there, Emily. Is it the right of a special counsel to draw that kind of conclusion, which plays into questions that people already have politically about Joe Biden's age but isn't relevant to whether he broke the law and classified documents?

Emily Bazelon: Yes, it was, I would say, kind of sneaky. The way the special counsel got in this jibe that Biden was to say, well, one reason that a jury might not convict him is that he comes across as a well-meaning elderly man with a poor memory. They might not think he did it on purpose or they might just not be sure quite right. It doesn't seem like he was behaving in this malevolent, deliberate way. That's how the special counsel got in this dig, but I agree with you. It certainly seems like it was unnecessary. Of course, it is turning into a big deal politically.

Brian Lehrer: A caller with a comment on the memory issue and then we're going to be out of time. Marvin in Brooklyn, you're on WNYC. Hi, Marvin.

Marvin: I thank you for putting me on. Now, this looks like Comey too. Whenever I hear somebody--

Brian Lehrer: You mean James Comey as special counsel or as FBI director looking at the Clinton classified documents way back then, put his thumb on the scale right near the end of the election in 2016? Just for context, I know that's what you're referring to, Marvin. Go ahead.

Marvin: Exactly. When I hear people between 20 and 60 forgetting a name or the movie that they just saw, I remind them to think about that moment. Because when they get older and they make that same kind of lapse, people immediately jump to say "Oh, it's a sign of dementia." Biden forgets things. He makes verbal gaps. He's done that his entire life. Young Nikki Haley was addressing Los Angeles County Republicans the other day and gave a shout-out to Orange County. I think one of the things that voters should think about is, what's a better measure of Biden's mental acuity? His enormous accomplishments as president and world leader or his soft voice located in the mistakes he makes when speaking?

Brian Lehrer: Marvin, thank you very much. We're going to sign Marvin up for the Biden campaign team. Makes the case very well. There we leave it with Emily Bazelon, Yale Law School lecturer, senior research fellow there, New York Times Magazine staff writer, Slate Political Gabfest co-host, and author of two bestselling books, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration and Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy. Thank you so much, Emily, for giving us your time on the Supreme Court case two days in a row.

Emily Bazelon: Always fun to be with you, Brian. Have a great weekend.

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