Harvard scholar predicts how Supreme Court will rule on key Trump legal battles

Laurence tribe university, Professor of constitutional law. Emeritus at Harvard University, professor tribe. You’ve been very outspoken and active on this issue and I want to start with you on this interesting legal question, which is the adoption of what’s called the questions presented. Uh, in the grants. So, basically, the court says, here’s the framing for what is being debated before us?

What we’re ruling on and the question presented. They adopted the one from Trump’s certification. And it’s a simple one. It says, did the colorado supreme court air in ordering present, trump excluded from the 2024 presidential primary ballot. And the reason that’s interesting is because the color of GOP which also appealed had much more sort of specific and technical questions presented, but it looks like the court is adopting the kind of broadest possible which gives them any possible avenue to consider.

I think you’re exactly right. Chris, they adopted a question. That doesn’t constrain them in any way they are going to decide whether to affirm or reverse. Look colorado. Supreme court. There are many exit ramps. There are many approaches. What is interesting is that if you are a strict textualist, you really read the words of the 14th amendment section 3, or if you are a so-called originalist a historian, but someone like jack breakoff of Stanford a Pulitzer prize, winning historian leaves, no doubt that the right answer would be The one that conservatives would give. It is more provincial moderates and liberals like Kagan and Jackson and sort of mayor who might ring their hands over the broad, systemic impact on democracy.

That’s an ironic situation. It’s filled with ironies. I mean, if you read the briefing submitted by Donald Trump and also by The republicans. Of Colorado. It’s filled with peons of praise or democracy. The people should not be deprived of their vote. But mr. Raffen Sperger. Can’t you just find me of them. This is all about depriving the people of the right to end a presidency by Engaging in what a detailed trial in Colorado concluded was insurrection. I don’t think the court is likely to take a technical. Off-ramp I don’t think it’s likely to hold you know that the words of the oath that the president took to preserve, protect and defend, the constitution didn’t use the word support prostitution and you know and therefore the president is not covered. I don’t think they’re going to take any kind of technique. Highly legalistic approach.

I think that the conservatives are going to have to establish. That, they mean what they say. And one way they could do that is to say that all though, the original meaning of section 3 of the 14th amendment Was that you didn’t have to be tried or convicted? Of insurrection. As long as there was a determination that you were an insurrectionist. Congress didn’t need to create a special. Scheme to do that because people knew what the score was at the time of the Confederacy. But now you have to become a little bit of an original of a living constitutionalist, right? Decades have passed. Now things are different.

Now there’s a lot more controversy about the meaning of these terms. Now, we need to wait for congress to figure it all out, and put a procedure in place. That is more uniform nationwide. That would be a plausible decision, not one consistent with genuine textualism or Originalism, but one that might make sense to the broad middle of the court. At the same time, they’ve got this very easy case about absolute presidential immunity or whether the fact was on trial for a featurable offense. And they are quitted by the senate, whether that somehow precludes his running, those are easy questions.

The court is certainly not going to go with Trump on those so If you’re a pragmatist, you are likely to say that they could cut this. Guardian not in half, they could basically say that, of course, presidents are not immune from crimes that commit, whether an office just because they’re wielding their presidential power, especially when they’re wielding it to overturn democracy and stay in power beyond the four-year vester term. Well, on the other hand, even though they have to face the music in criminal court, we are not going to let one state after another make up special procedures to figure out whether they are insurrectionists.

I don’t think the cork would damage itself very much except with fury, and people like me and judge looting who take the text a little more seriously. Yeah, that’s an, that’s a, I think a very interesting implausible way of seeing both the, the legal reasoning here, the practical reasoning, the sort of modes, of political of the modes of constitutional interpretation and the weird cross pressures. Within them, to go back to judge Posner’s view on judging Lawrence tribe. It’s always a great pleasure to hear you talk about this. Thank you very much.