 and issues take one. It's 2024. I'm Tim Epichel, your host, and today's title is, In 2024, the Supreme Court of the United States decides Trump's future. 2024 will be an interesting year for many of us, and especially for Donald Trump, as he entertains 91 criminal indictments. And of recent, the two very important cases that need to be determined is one is whether or not Donald Trump will be allowed on the ballot in many states in the United States. And secondly, whether or not Trump is immune from his activities while serving as president of the United States. And to discuss those two topics, with me is my co-host, Jay Fidel. Good morning, Jay. Wow. What a show. What a subject. Glad to be with you, Tim. Yeah. Yeah, I'm looking forward to diving into this one because, you know, two years ago after the election, you and I, on this show and your show, discussed many times the 14th Amendment, Section 3. And we could probably say confidently that the media wasn't picking up on it. They are now, and they are now specifically because the state of Maine, the Secretary of State, said Donald Trump is not eligible to serve as a candidate on the election for 2024. And the Colorado State Supreme Court said the exact same thing. So we have two states in the union that said he shall not pass. So the question is whether or not the states get to stick with their opinions, or is it challenged up the appeals court and or to the Supreme Court? Your thought on the dilemma of where this thing goes, the 14th Amendment, Section 3, and how it applies to Donald Trump, and whether Donald Trump gets to remain on the ballot? That's multiple compound question, Tim. That's how I like to ask him, because that's how you do it to me. Okay. Well, where is it going? Well, you have Colorado, which is state Supreme Court. And you have Maine, which is, you know, just an elections official. But they both had evidentiary hearings at the Colorado General Jurisdiction Court before it got to the Colorado Supreme Court. And in Maine, the elections officer had a significant evidentiary hearing. So they both had tryers of fact, if you will, on the question primarily of whether this was an insurrection, which seems to be kind of obvious anyway. Then there are two states that rule the other way that said he is entitled to be on the ballot. One of them is California, and the other is Michigan. So you can see it's kind of political. You're not sure. I mean, to me, I don't see the Colorado case as political. I don't see the Maine case as political. Republicans are involved in those two cases, as the people who brought the action, so to speak. I don't know about California. I don't know exactly what happened there. And I don't know about Michigan, but I suspect that there were political maneuverings there. In any event, it's a very interesting question as to how this is going to play out. If you look at abortion, the Supreme Court said, okay, there's no constitutional right to abortion, so we don't let the states decide. So they let it go into chaos state by state, which was a ridiculous decision, but that's what we have. Now you have a situation where the Supreme Court can say, well, we're going to let it go back to the states and let the states decide that would be chaos in the election. Because it's not clear whether there would be a lot of states or a few states that would vote this way or that way with regard to their judicial decisions. However, this is a constitutional amendment. This question is decided under a constitutional amendment, and it's easy to say that this should be a national decision, because the vote we are talking about is national. And so I would expect, A, Supreme Court will rule on this, and B, that it will find whether it goes this way or that way, it'll find that it's ruling governance all states. So I think it's clear that the Supreme Court will take it and will hand down a decision that affects all states one way or the other. The question then is whether the Supreme Court will rule that he's on the ballot or off the ballot. And that's what we should talk about today. But keep in mind that Clarence doesn't want Trump to be off the ballot, and he will try to get his Republican and politicized majority on the court to vote with him. And he will not recuse himself, even though his wife was involved in a Trump campaign and the insurrection. She was involved in the insurrection. It's kind of interesting that Clarence would opine on the insurrection when his wife was an active and personal participant in the insurrection. But they're going to have to decide one way or the other, I think, and it's going to have to be a national decision. And I think if I went to guess, and it's a sad guess, really, that they will vote to leave Trump on the ballot, which is an absurdity. Because can I ask our engineer, Michael Bangolin, to put the language up on the screen? And if you don't mind in answering your question, I would like to read that language. Session three, disqualification from holding office. I'm going to read it because I think it's short, and I think every word counts. And they call it a post-Civil War amendment. But you know what? That's kind of an insult to it. It's an amendment. It was passed pursuant to the provisions for amending the Constitution. It was not simultaneous with the adoption of the Constitution itself. And so what? It was post-Civil War. So what? Would that make it less effective or more effective than it was incorporated in the Constitution itself? The answer is no. It's part of the Constitution. It doesn't matter when it was adopted. Anyway, it says no person shall be a senator or representative in Congress or a elector of president and vice president. Here's the good part. Or hold any office, civil or military, under the United States or under any state who, having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by vote of two-thirds of each house, remove such disability. And I guess one issue was whether this was an insurrection, but for any court, in my view, to find that it was not an insurrection is to deny what we all saw with our eyes, a violent insurrection against the Congress. No question about it. We saw it. The evidence has been made clear. And it was investigated by the select committee in Congress. And we are all witness to what happened, all of us. Well, if you remember the district case, the district court case where the judge accepted the findings effects about the insurrection, that wasn't the issue. That judge in the district court said Trump may remain on the ballot because of the issue about officer. Well, that's going to resolve that. I'm breaking this down piece by piece. So first of all, this was an insurrection. I don't know how any reasonable, thoughtful person who reads and speaks the English language could find otherwise. In the United States, it's so clear. And yet, there are people who say, well, maybe it's not an insurrection. Or maybe it requires a criminal conviction. Section three doesn't talk about criminal conviction. It says insurrection. That's all it says. And engaged in, well, we saw him incite the insurrection. I would say that's engaging. And we know full well that he went back to his office and he watched it without doing anything to stop it for hours. And then he said, they love me. They love me. I mean, he had a relationship with them and evidence has come out that he was actually, he and his people are actually involved in organizing the insurrection. I mean, the evidence is all over the lot. So any court, I can't imagine a court, a judge or a jury finding this was not an insurrection. But, you know, that's an issue in front of the Supreme Court or will be. The next point, your point a minute ago is Trump is a president, an officer of the United States. Can we see that language one more time? Okay, it says or hold any office under the United States. That's the second and third line there. Okay, then it refers to an officer of the United States. When you take that together, somebody who holds an office under the United States or who is it and who or is an officer of the United States. Does that, is that doesn't include the president? If the president is not an officer of the United States and who is he? You know, Trapliva? Who is he? He's got to be an officer of the United States. For anybody to argue that the president who is the chief executive officer of the United States is not an officer of the United States is ridiculous. Well, he's an office holder. By definition, he's an officer. Yeah, well, I mean, it's clear. It's so totally clear. I don't know how. Well, the other thing that people are trying to throw in the mix is whether or not he took a proper oath, the proper oath of the president of the United States is that which refers to in the paragraph 14th Amendment section three. But the presidential oath is to support and defend the Constitution. It's another ridiculous argument. Correct. It is. It amazes me that, you know, some lawyers, academics usually and, you know, some commentators who need to who need to fill the airtime. You know, this this whole section three thing is newsworthy. They need to fill the airtime so they generate these ridiculous arguments and schmooze around these ridiculous arguments on cable TV. These are all ridiculous arguments. You know, you don't have to be past the third grade to read the language of this provision. And it's not ambiguous in any way. If you have engaged in or given a or comfort to an insurrection, after taking an oath, support and defend the Constitution, you cannot hold the office of the president of the United States. There's no rocket science there at all. It amazes me that people generate these ridiculous issues around it. But if you stopped somebody on the street and showed him that language and read that language, he would have no choice but to say, this applies. Well, let me ask you this. Let me ask you this. I'll take the devil's advocate position here. And that is by barring Donald Trump from the ballot. That's undemocratic. Could you argue that it's very democratic to bar an insurrectionist from the ballot? I mean, how can you argue? How could you're an attorney? How could you argue that both ways? What I mean, democratic, that's we're dealing with section three of the 14th amendment. It's the only test. That's it. That's what we got. Whether it's democratic, whether it should be decided by the courts or a vote of the people, whether you flip a coin, doesn't matter. It's this. This is the language. So I don't think it's relevant to ask the question of democratic or everybody should vote for it. We should have some other decision process. It's out there completely black and white. And that's the test. Right. You know, Timothy Snyder wrote an article which you passed on to us called the pitchfork ruling, which is to say there's a hesitancy to rule Donald Trump off the ballots as that might cause violence or insurrection after that point. But it's not the point of the Constitution to avoid such unpleasant situations. The point of the Constitution is the rule of law. Is it not? Yeah. It's section three of the 14th amendment. That's what it is. And Snyder made an interesting and important point. The Constitution is supposed to deal with pitchfork emotional concerns in the population. And that's why we have a Constitution. If we didn't have a Constitution, we'd be governed by pitchfork. And we can't throw it away, imagining that there's people out there who don't like it. That's what governs us. This is the Constitution we must live by. So if there are those who would carry pitchforks on this or any other issue, we have to look to the rule of law. Simple. And when they say, and a lot of commentators have said, oh, this is going to raise the ire of people and they're going to be out in the streets over it, they might be out in the streets on anything if we let them do that. We cannot be concerned about it because it is not the test. The pitchfork test is not the test. It's the Constitution that is the test. It's section three that is the text. Jay, I'm reminded of the 2000 election where the Supreme Court of the United States did in fact determine an election between George Bush Jr. and Al Gore. There were a lot of Democrats that weren't happy about it. I don't think they took to the streets with torches and pitchforks, but none of them said not my president. Well, that's their prerogative to say George Bush was not their president. But nevertheless, the Supreme Court decided an election. How is this same or different? Well, let me say that Donald Trump ain't no Al Gore. Or George Bush. Or George Bush. Well, yeah, Al Gore conceded the election. George Bush didn't say the things that Trump has been saying for every election back to 2016. So I think it's really remarkable that we tolerate. It is so outrageous for him to not agree with the popular vote, not agree with the constitutional vote of the election, and to claim power without any legal or constitutional basis for it. And I'm going back to this section here. If this section fails, if they gut this section, which I'm afraid the Supreme Court might very well do on grounds that are not logical and not reasonable and not consistent with the Constitution in general, and the nature of this country, if they gut section three, there will be no section three going forward. Zero. It will not exist. And that is a terrible precedent to have them gut a provision of the Constitution. So in order to give Trump, you know, a place on the ballot. So I guess to try to answer your question, the Supreme Court here has the power to give Trump a place on the ballot or not. And the only correct answer is to keep him off the ballot because of this very important constitutional amendment. When they say that, oh, this is post civil war, I guess they're including, you know, a lot of these commentators you see on cable, they're saying, oh, this must be related to the civil war. It doesn't say that. It doesn't talk about the civil war. It's part of the Constitution. It is as powerful and important and generally applicable as any part of the Constitution. So I really, as I said before, I don't agree with the nomenclature when they try to link it up with the civil war. Well, you know, I could argue, we've said it for five, six, seven years is that the United States is in a sense a very cold civil war right now. Not a red hot one or a hot one, but it's a cold one of sorts. The population is polarized between the mega GOP and everyone else. So given that point, this, whether this was a civil war clause or not, and you're right, it doesn't mention anything about the civil war. Let me ask you this. I mean, so if there's some political forces abound, be it the Supreme Court or otherwise, that there's a concern about the reaction about taking Donald Trump off the ballot, what about the concerns of the political impacts and insurrection impacts of those that insist that he be taken off the ballot? What about their reaction? Oh, you know, that's why we have constitutions. That's why we have provisions in the Constitution. Not everybody will agree, but we have this matrix of laws, matrix of constitutional provisions. And this country is founded on the essential and founding ideas that we will abide by what it says. So if they don't like it, they're part of the country that needs to agree with the result. If they like it, they're part of the country that is obligated to follow the result. I don't, I think it matters if they're in the streets with pitchforks. And that's Tim Snyder's point. It doesn't matter if they're in the street with pitchfork. That's not a test. That's not in the Constitution. And if we throw away the Constitution in favor of worrying about pitchforks, we don't have a Constitution anymore. This is very serious what happens here, regardless of the result. So, you know, to me, I don't think that's an argument that plays a role. I mean, the nation does, over time, the nation gets used to the idea. I remember when Roe v. Wade was first decided. I was, I think I was a senior in high school. And, oh, the reaction was tumultuous. But over the 50 years, I mean, people got used to it. And certainly in the first initial years, it took a while for people to get over that decision. But they did. Maybe they didn't. And maybe that's why it took 50 years to try to reverse it. But the point is, what's the value of applying a political solution to a legal question? Right. And that's the problem with the Supreme Court now. It's a political court because of the 63, you know, conservative, I mean, politically conservative majority, where you can predict they're going to do conservative on every case, or very nearly every case. So, you know, the problem for me is you talk about a country that is governed by the Constitution. Well, part of that is you have to have trust and confidence in the institutions that are created by the Constitution. If the Supreme Court is not worthy of our trust and confidence, what then? If Supreme Court rules against the plain language of this amendment, which we looked at a minute ago, then, you know, what do we have here? We cannot be confident. I mean, I'm losing confidence. I have lost confidence in them already. But I'm not 330 million Americans. If 330 million Americans read it as English, and they find arcane ways and arguments to get around it, all in favor of Trump, what are people going to think? What is the country going to think? It will erode public confidence, even among the people who support the result. And our Constitution and our country will be in great jeopardy for the lack of confidence in the institutions created by the rule of law. You know, thinking of one of the higher officers, not of the United States, but one of the higher executives that were prevented from being placed on a ballot for President of the United States. And that was Jefferson Davis. I'm sure there were many southern states that wanted to see his name on the ballot for President of the United States, but that didn't happen. And I suspect that was a very patriotic and democratic thing to do. He tried to over, well, he did. He succeeded the leaders of the session from the United States. Interesting. You know, it's like Al Gore. He exceeded to the law. In this case, the law had been confirmed by Lincoln and, you know, by the North in that war. Let me add too that, you know, there's the whole issue that came up with Nikki Haley about what the Civil War was about. And she came up with this third grade kind of explanation. It was about, you know, the rights of the North versus the South or something really mush. All free people. I didn't get it either. But it was my right. You know, I don't know what she was saying, but she didn't talk about slavery or enslavement. And in a recent article, I don't know if you noticed it by that writer that we both like, Heather McCox Richardson. She went through it in some detail. Exactly, you know, what Lincoln's view of the world was and the problems that he had in expressing his opposition to slavery. It was a real issue involving a lot of states that wanted to have slavery through and even after the Civil War. And so he was able to settle that down and save the Union and toss slavery. What an incredible guy. And I don't know if we give him full credit. She did. Heather McCox Richardson explained, you know, the issues and problems and machinations and strategies that were involved in getting rid of slavery. But I think we have to recognize that the Union was in great jeopardy then. And I think we have to recognize that the Union is in great jeopardy now. Great point. Well, speaking of jeopardy, let's talk about the the appeal that Donald Trump's attorneys throughout today. And that is to argue the point whether or not the President of the United States, any President of the United States, but specifically Donald Trump is immune from prosecution, be a criminal or civil, while holding a seat as President of the United States. I think this one's pretty clear, pretty straightforward. But what's your thought about the attempt to say that Donald Trump is immune from political, excuse me, from criminal or civil liabilities? It's poppycock as every argument that he makes. And he's just thrown it on the wall to see if it sticks. And the other thing, tactically, he's trying to push those trials off. So he wants to, you know, you know, get get some kind of appeal process going and hope that it won't happen right away. And it won't happen right away. You know, Jack Smith was, I'm sure, disappointed to find Supreme Court would not handle that issue on an expedited basis. So we'll have to see when they come up with something. If they don't decide it until after the election, that gives Trump a tremendous, tremendous benefit. You know, in today's news, I heard the grand bargain being thrown out there. The grand bargain is, well, the Supreme Court will allow him to be remain on the ballot. But as compensation, they'll expedite the trial dates. They won't string it out and delay it. I thought that was incredibly crazy that the Supreme Court would act as some kind of political blind justice, if you will. That's not in section three of article 14. That's that's making it out of whole cloth. It sounds like one of those untoward negotiations and quotes that happen in the Middle East where nobody is serious. That's not serious. Supreme Court, if the Supreme Court does that again, they would lose all credibility. There's no negotiation here. It's either he's on the ballot or off the ballot. And that is a matter of law. And may I say the English language. Thank you. What do you think? And I know this is a, you know, sometimes I'm prone to asking a silly question now and then. What do you think would happen if Donald Trump prevailed and he was seen to be immune for his actions as President of the United States? What would this country go? What would this country be like? Well, we've talked about that, haven't we? We talked about what would happen on day one, where he would turn the country, you know, in one business day, he would turn the country into an autocracy and make himself a dictator. We wouldn't, we wouldn't have to worry about day two because by day two, it would already be an autocracy, wouldn't it? So if he, if he is able to prevail on one or both of these issues, that is, if he can stay on the ballot and if he can get a determination from the Supreme Court, ridiculous determination that he is immune from criminal prosecution. And if he wins, as we have discussed, it's really the end of the United States as we have known it. And there's no other way to look at it. You know, we talked about this years ago that the Department of Justice wrote a memo saying President of the United States is immune from prosecution while sitting in the chair as President, criminal or civil prosecution. The remedy for the President would be impeachment. That's the only remedy. So let's, let's, let's move forward and say the Supreme Court decides definitively that no President is immune from criminal or civil prosecution. How does that send a message to all future presidents? Do you think we get, we avoid in the future the Richard Nixon's of the world, people that become president think they could do what they want as they want, when they want. Would that be a healthy thing to get a Supreme Court decision defining what immunity is for the president? You're begging the question. Always. What else is new? The answer is, you know, we don't, we want to say to presidents they can do anything we want, anything they want. You know, they become autographs, they become dictators. We lose the rule of law. If they do crimes, they need to be prosecuted and convicted and impeached, whatever it is. And, and my, my concern is that if, if we make him immune, we, we will have no control over what he does or less control. And we cannot afford to do that. So, I mean, we want to tell the presidents, all presidents, Republican, Democrat, everybody that they should not commit crimes while they were in office, period. Remember the prophetic statement he's said as a candidate in 2015 that if I shoot someone on Fifth Avenue, no one would care. Basically, that was the, his, his statement. I guess he really believed it because he's asking for the Supreme Court or the Court of Appeals at this point that he is immune. Well, at the time he said that it was a ridiculous statement. It's still a ridiculous statement. However, he is trying to create an environment where it wouldn't be ridiculous that he could shoot somebody in Fifth Avenue and he would be immune from prosecution. I mean, I think it's amazing even to incontinence this, even to consider it by anyone. But here we are considering another outrageous statement. You know, it's not just that Trump lies 30,000 times in office. It's not just that. It's also that he makes outrageous statements and people take it. His base takes it and a lot of other people take his statements, which are completely outrageous and give them credence of some kind. It runs in parallel to all the lies. We cannot afford to accept that. We have to use our education, our critical thinking skills and not accept that from him or anyone else. That's the price of democracy. Well, lying is one of the top tenets of propaganda and quite effective for those that aren't prepared for it, that don't recognize propaganda when they hear it, when they see it, and then when they see people repeat it. So, spot on Jay. Last words, we're out of time. Last words for either his immunity request, his appeal for immunity, or where we stand right now with the 14th Amendment Section 3 and state's decisions to either keep him on the ballot or remove him. I'll go in reverse order. As I mentioned, I think the language of this section is so clear, and it really bothers me that academicians and scholars even, they have to fill the time on the media by coming up with some kind of news story on it. But the fact is, it's clear. There are no good arguments against it, none. And I'm very pessimistic, however, what the Supreme Court might do. But I think in the truth of it and the reality of it, there are no issues. He is not qualified. He did an insurrection. He organized, he planned it, and he gave aid and comfort afterward. And he took an oath of office. And he definitely, as an officer was an officer of the United States, we cannot afford to have him, just as the proponents of this amendment said in the first place, we cannot afford to have him be an officer of the United States again. He is disqualified by every word in that section. On the question of immunity, what immunity? There's no immunity in the Constitution. There's no immunity in the law. If some untoward politicized member of the DOJ said that he should not be prosecuted, that is not the law. And the presumption is that if you conduct a crime, the justice organizations in this country should prosecute you. And a jury, if you like, should be impaneled to rule on guilt and innocence. And you need to pay a price. We have to have accountability. If we don't have accountability, we will have autocracy. We'll have dictatorship. And the country will go into further decline. We are already in decline because of what Trump was doing in his first term. In his second term, he could really put the pennies on the eyes. All right, Jay. I like how clear you are on this topic, because it's probably one of the important topics that we'll see for many, many years to come. And certainly in 2024, I want to thank you for your contribution. I'd just like to add that when we discuss the 14th Amendment, Section 3, we look at the oath of office that Donald Trump took any politician takes. And that is the support and defend the Constitution of the United States. And somehow, I don't know, when you try to stop the transference, a peaceful transition from one president to the next, and you mix in an insurrection in the middle of it. And in fact, he did. He did stop the peaceful transference. There was a delay. And we'll see if he's guilty of that with the criminal case against him. But as far as 14th Amendment, Section 3, as you say, Jay, it's clear as you read it. And with that, let me add one other point I don't think the media makes enough attention to it. They say, this is an insurrection. This is an attempt to defer the vote. This was more than that. This was an attempted coup, C-O-U-P coup. That's outrageous. That is- Yeah, that kind of gets lost in the discussions on TV, doesn't it? It's treason. It's undoing the government in order to achieve your own power. It's taking the reins of power without any legal basis whatsoever. And that's what he did. So to me, it's not only insurrection, it's worse than insurrection. Great point. Thank you, Jay. Join us next week for American Issues Take One. I'm Tim Appichelle, your host. And by the way, if you like what you just saw in this program, click like and follow us. We'd really appreciate that. And until next week, aloha.