I appeared this morning on Chicago’s Morning Answer show with Dan Proft, and Thomas Drum (sitting in for Amy Jacobson). This is one of my favorite shows on which to appear, and I’ve been on many times before.
The entire segment is worth listening to, including the first half where they played clips from the oral arguments, but I’ve marked the video to start where I joined, at the 9:00 mark to talk about the SCOTUS oral argument in the Colorado “insurrection” ballot case. At the 11:30 mark the conversation switched to the Special Counse’s decision not to charge Joe Biden based on Biden being an “Elderly Man With a Poor Memory”
I have started the transcription below where I joined.
For more on this, we’re pleased be joined by Professor William Jacobson, Clinical Professor of Law, Director of the Securities Law Clinic at Cornell Law School. He’s also the founder of legalinsurrection.com, president of the Legal Insurrection Foundation. Professor Jacobson, thanks for joining us again. Appreciate it.
Thank you for having me on.
I mean, it seems like, maybe with the exception of Sotomayor, and maybe under pressure, if it is good looking the way of an 8-0 decision against the Colorado Supreme Court’s position, that she’ll fold in, it looks like this is, I mean, it sounds pretty straightforward from the questioning, doesn’t it?
Well, it sure does. We’re always hesitant to jump to conclusions based on oral argument, but given this is such a weighty question, everybody saw it coming for weeks now, and nobody took the side of the people who want Trump off the ballot. Clearly people are predicting 8-1 or 9-0. I think if, if it’s 8-1, I think you’re right, it probably would be 9-0. They may all have their different reasons and there’s, three or four or five or six reasons why this should be reversed. That came out in oral argument. And they may not all agree on all of them, but I think we’re going probably get 9-0 here. I think Justice Roberts hit it right on the head. It’s going be a free-for-all in the country if they allow Colorado to get away with this.
Right. Yeah, that to me, is that the practical consequence. I mean, we can go through some of the issues that are more dense, the self-executing argument with respect to section three. But just the practical implications that Roberts articulated and have been articulated in the run up to oral arguments here in the public domain, that that is not a tenable situation. And the court definitely doesn’t want to even contemplate the prospect of being put into the position that Justice Roberts described.
That’s right. And that’s what he sees coming, he sees that what the Colorado supporters really want here is they want to toss this all to the Supreme Court eventually. And he pointed out how impractical that is, and this is a court that’s been under attack a lot. It doesn’t want to be in that position, and it’s not required to be in that position. And so I don’t think they are voluntarily going to take on the role of deciding which states get counted and which don’t.
Well, so he good news is that I think they conference today after oral arguments, right? So we should hear something from them relatively soon, and we can put this issue to bed and tackle the myriad other issues before us between now and November. Yes?
Well, I would think they’d come out with something quickly. I mean, they just have to, we’re in the election season now. That doesn’t mean necessarily Monday, but they’re not going to wait till June on this. They can’t wait till June on this. My guess is within a couple of weeks we’ll have their decision. They all probably have their opinions written already, and they’re just waiting. We could get six or seven or eight opinions here, but I think at the end of the day, it’s going to probably be 9-0 that Colorado is reversed.
I wanted to get to another matter with you too, after last night’s press conference from President Biden. And the aftermath of that now being the renewed question about his competency to continue to serve, some discussion of impeachment on this basis. I don’t really see that, some discussion of a 25th Amendment invocation because of his performance and what’s contained in that special prosecutor’s report, Robert Hur’s report about his memory and by extension,competency to stand trial. But I mean, that seems relatively implausible too when you need the VP and a majority of the executive departments or a majority of Congress to move on the president. I don’t think one press conference or one special prosecutor’s report gets it done, but in the aftermath of that, from a legal perspective, what would you be thinking?
I’m not sure there’s a legal remedy here for anybody, I don’t think, I think you’re absolutely right. The notion that the 25th Amendment’s going to be invoked successfully here, I think is very slim. Unless they’re seeing something that others aren’t. Now Kamala Harris, I think she’d go along with it if she thought she had the votes, but I don’t know that they’ll be there. Remember, these are all people appointed by Biden. So I think it’s going to have to get a lot worse for him. But it’s obviously a huge blow to his campaign. It’s huge fodder for a presumptively Trump campaign. Is it going to matter six months from now? I don’t know, but it’s certainly not the sort of development you want, but I don’t see a legal angle here. I think this is a political angle.
The special prosecutor’s report, was it appropriate for him, since this is supposed to be a legal document, that contains a legal analysis to be talking about how a jury may view a defendant Biden and other such considerations that have very little to do with whether or not he violated the law in terms of handling of classified documents at the time that they were mishandled?
Well, technically speaking, it shouldn’t make a difference in terms of whether someone was guilty of the crime at the time it was committed. But this is what James Comey did with Hillary Clinton, if you remember, I think it was July 5th, 2016, he spent 17 minutes going through why she lied about her server, why she lied about documents, and everybody’s like, now he’s going to lower the boom! And then he says, but no reasonable prosecutor [talkover – would bring such a case] ….
I know, but that’s my point. I didn’t like it then, and I don’t like it now.
I know, but you know, technically speaking, I don’t think it’s appropriate. I think the question is can you prove your case beyond a reasonable doubt. I don’t think a prosecutor should bring a case that he can’t prove beyond a reasonable doubt as opposed to essentially jury nullification. They’re going to think he’s a crazy old man with a bad memory and therefore won’t convict him. So, no, I don’t think it’s appropriate, but it’s been done before. But this is politically, it would’ve been more damaging if the recommendation was an indictment. So I think Biden was let off the hook, but it’s just really frightening that we have somebody who’s deemed mentally incompetent to convict, but can still have his finger on the nuclear codes.
Yeah. Yeah. He’s not fit to stand trial, but he’s certainly fit to be the commander in chief, try to make sense of this dynamic. Uh, yeah, it’s a difficult one. But the other thing you point out though too is it’s been done before, the power of precedent, and this is why setting bad precedents is so dangerous and should be more considered than it is in our politics.
Yeah. Well, look what they’ve done to Trump, though the prosecutors have exercised that discretion the other way, which is we’re going to put him on trial and try to convict him regardless of what a jury might do. They’re going to try. And whereas Biden gets the benefit of the doubt, which is, well, maybe there are grounds there to convict him, but we don’t think the jury would do it.
So definitely that’s where the double standard lies, they’ve gone out of their way to find a reason to charge and indict Trump. They’ve gone out of their way to find a reason not to charge and indict Joe Biden, where the conduct is mostly similar, not identical. There’s no allegation, if I recall, of obstruction of justice like there is in the Trump case in Florida, but nonetheless, the deliberate and knowing retention of classified information post, in Biden’s case, vice presidency, and in Trump’s case, post-presidency, is really, for the most part, the same. They both thought they were entitled to hold this stuff, and the government says, no, you’re not.
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