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Supreme Court will rule on Trump's eligibility for state ballot

SCOTT DETROW, HOST:

It's the third anniversary of the January 6 attack on the U.S. Capitol, and we have been focusing on it throughout the show and looking at how what happened three years ago still looms so much over our current political system. Earlier, we talked about how some 1,200 people have been charged with crimes for their actions on January 6, 2021. And now we want to talk about the most prominent January 6 defendant, former President Donald Trump himself.

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED GROUP: (Chanting) We love Trump.

DONALD TRUMP: This is a persecution.

UNIDENTIFIED PERSON #1: He actually just stormed out of the courtroom.

UNIDENTIFIED PERSON #2: Innocent until proven guilty in a court of law.

DETROW: That's right. It's time for Trump's Trial's, our weekly look at all of the legal challenges that Trump is facing. And on this anniversary, there's a lot to talk about. In a federal appeals court next week, Trump's legal team will be making the argument that since the attacks happened when he was president, he's immune from prosecution. So we'll look at that claim. And we're also going to dig into the U.S. Supreme Court's announcement late on Friday that it's going to take up an appeal of the Colorado Supreme Court's decision to disqualify Trump from the Republican primary ballot because of language in the Constitution barring insurrectionists from holding office. I'm joined by NPR senior political editor and correspondent Domenico Montanaro.

DOMENICO MONTANARO, BYLINE: Hey, Scott.

DETROW: Also joining us is Harry Litman. He was a deputy assistant attorney general during the Clinton administration.

HARRY LITMAN: Good to be here.

DETROW: So let's start with the court's Friday announcement that it's going to take up the Colorado case. This is the question of whether or not Trump is eligible for office due to the 14th Amendment. What did you make of the court's announcement?

LITMAN: You know, it's like a tsunami. We sort of expected it to happen. But nevertheless, when it actually comes, there were two things to note about it. First, they actually announced it Friday afternoon. And they don't always do that with Friday decisions. They can wait till Monday. So they are so much running and jumping the gun that they didn't want to lose those three days. And second, they set a calendar that is warp speed for the Supreme Court. Trump has 10 days to file a brief on the merits, and then the other side has 13 days. And the oral argument is going to be in a month, February 8. That is really kind of record sprint all the way to the end.

DETROW: It is a very fast pace. At the same time, though, probably not fast enough to give clarification to primary ballots, which are the question here. There was the primary ballot that Colorado ruled on, that Maine ruled on. Maine's secretary of state told us that she really needed to know by late January because of deadlines for getting ballots printed and to overseas voters. Seems like this is going to be more of a general election clarification.

LITMAN: So the people who brought the challenge to get them off the ballot and won in Colorado, they asked the court to do it even more quickly, along the lines you were just talking about, Scott. But, you know, the court is dancing as fast as they can. And really, what matters more is the general election for a number of reasons. In some ways, the craziest month maybe ever in Supreme Court history. Both these cases, if they take immunity, are, A, huge legally, but, B, huge politically. So all eyes are on them in a way that I think they would dearly like not to be the case, but they're stuck.

DETROW: OK. Let's shift gears to the immunity question because that's going to be in front of a federal appeals court on Tuesday. What do you make of this question at the heart of the argument, Trump's lawyers arguing that there's absolute immunity from things that happened during Trump's time in office?

LITMAN: You know, I don't think it's going to fly, but the Supreme Court has never held expressly that he doesn't. But they've held a lot of things that kind of lead to that conclusion, not to mention, just from a commonsense perspective, his argument would lead to, you know, his early position of being able to shoot somebody on Fifth Avenue.

DETROW: Yeah.

LITMAN: So I don't think it'll fly.

DETROW: There's one other argument that he's making. That's the separate argument about impeachment, the fact that Trump was tried for this already and found not guilty by the Senate in 2021.

LITMAN: Ridiculous, I think. And it's going nowhere. What he's saying is the clause in the Constitution says if you're convicted, you can still be tried in the criminal courts - and he wants somehow to say, that means if you're acquitted, you can't be. It just doesn't follow. It doesn't make sense. And no court's going to adopt it.

MONTANARO: Also, I just think it's funny. You know, Trump was, quote-unquote, "acquitted." But at the same time, this is a very sharply divided country. And there were 57 senators who voted for his guilt.

DETROW: Right.

MONTANARO: It wasn't like a majority of senators voted to acquit him, you know, not that that's the standard, right? And it's certainly not the standard in a court of law, where it needs to be unanimous. But, you know, in a Congress that's this closely divided, to get 57 votes for something is still a pretty big deal.

DETROW: And that gets to the political point I wanted to talk with you about, Domenico. If you had told me in January 2021 that three years later, Donald Trump would not only be remaining politically relevant, but would be a contender for the presidency and would be embracing what happened on January 6, I would have had a really hard time believing you. Just how do we think about the way the politics of January 6 have shifted, especially with Republican voters?

MONTANARO: I agree. And I wouldn't have told you that. So you wouldn't have...

DETROW: Yeah.

(LAUGHTER)

MONTANARO: You wouldn't have been surprised because I wouldn't have said that I would have thought this would make him the front-runner far and away for the Republican presidential nomination three years to the day after January 6. But yet here we are.

We saw a poll out this week from The Washington Post and the University of Maryland that tried to measure some of these sentiments among Republicans. It's amazing how far apart Republicans are from Democrats and independents on this question of Trump's guilt, on whether he bears any responsibility for January 6. In fact, small, small percentages of Republicans - only 14% of Republicans - said that Trump bears responsibility for that day. That's down from 27% in 2021. Still not huge numbers, but the fact that three years later it's become this divisive and that there's no consensus really shows the fracture that we've seen where the Republican primary voters fully believe almost everything Donald Trump says. And he's highly, highly, highly unpopular with independents and Democrats. And that's all going to come to a head if Trump does win the nomination into a general election.

DETROW: Let's talk about how much January 6 and these criminal charges are playing a role in the campaign. I mean you've seen Biden at times try and talk about broader issues and stay away from Trump himself, but at the same time is really leaning into the idea of democracy being under threat. He just gave another one of those big speeches, trying to frame what happened on January 6 and trying to frame Trumpism and the MAGA part of the Republican Party as just outside the norm. And that's an argument that worked pretty well in the midterms.

MONTANARO: It's an argument that worked pretty well when Joe Biden ran...

DETROW: Yeah.

MONTANARO: ...In 2020, I mean, even before that - there was a January 6 insurrection, calling Trump a threat to democracy, saying that the country can't afford or be able to survive eight years of Donald Trump, as opposed to four years. And I think that it's going to be the principal thing that Biden runs on again this time. I mean, he can't change his age. But what he knows he has at his back is the fact that most independents don't have very good views of Donald Trump, that a lot of people see him as a threat to democracy, and he's going to bang that drum repeatedly over and over again.

And, you know, Josh Shapiro, who's the governor of Pennsylvania, had said that he thinks that a lot of voters right now have brain fog when it comes to Trump because he's just not in the news as much as he was. But Democrats are going to spend millions upon millions of dollars, and January 6 is going to be a main key focus of what you're going to hear about Donald Trump's conduct and these sort of increasingly anti-democratic views that he's been spouting on the campaign trail.

DETROW: Harry, let's talk about Tuesday. Let's talk about the oral arguments for this immunity question. We walked through kind of the arguments, but let's talk about the timeline. Because remember, just a few weeks ago, Jack Smith had asked the Supreme Court to speed up the timeline to immediately take up this case. The Supreme Court declined to do that, had to go through the normal process. Now it's in front of the appeals court. How quickly do you think we could see a ruling?

LITMAN: Very. So remember, the Supreme Court first started to walk down that expedited road and then denied it only after it was clear the D.C. Circuit was weighing in in warp speed for a court of appeals. So I think they're set up to hear the argument Tuesday and issue an opinion within a week or 10 days. That's, you know, based on their past conduct with Trump in mind.

And then it goes right up to the court. A very important thing to look for is whether the court of appeals, when it rules - and I think it will rule against Trump - imposes a stay that's sort of a short trigger, doesn't give him time to move for 30 days for the full D.C. Circuit, 90 days to the Supreme Court, but actually puts him on a short leash, which they can do. That'll be significant.

DETROW: That's Harry Litman. Thanks again for joining us.

LITMAN: Thanks for having me.

DETROW: And joined, as always, as well by Domenico Montanaro. Thanks, Domenico.

MONTANARO: You got it. Transcript provided by NPR, Copyright NPR.

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