The Question Of Trump's Eligibility | Crooked Media
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February 08, 2024
What A Day
The Question Of Trump's Eligibility

In This Episode

  • The Supreme Court heard oral arguments on Thursday in a case considering whether or not Donald Trump can be removed from the ballot in Colorado because of his role in the Jan. 6th insurrection. Most of the justices, including a number of the liberal justices, seemed convinced by at least one argument from the defense: that an individual state can’t disqualify candidates in a national election without Congress specifically granting them that power. We’re joined by Melissa Murray, professor of law at NYU and co-host of Crooked’s Strict Scrutiny podcast, to learn more about the hearing and what comes next.
  • And in headlines: a Special Counsel report into President Biden’s handling of sensitive government documents cleared Biden of committing any crimes, the FCC said that it’s immediately outlawing robocalls that feature AI voices, and a high school football team from the town of Lahaina is headed to the Super Bowl this weekend.


Show Notes:


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Josie Duffy Rice: It’s Friday, February 9th. I’m Josie Duffy Rice.  


Priyanka Aribindi: And I’m Priyanka Aribindi. And this is What a Day, the podcast that is ready for Usher’s Super Bowl performance this weekend. 


Josie Duffy Rice: Yeah, you actually can’t be as ready as me because I’m from Atlanta. 


Priyanka Aribindi: No, I absolutely cannot be as ready as Josie, but I’m ready in my own way. 


Josie Duffy Rice: In a non Atlanta way. 


Priyanka Aribindi: Ready in my own way, may still be emotionally preparing. It’s all right. 


Josie Duffy Rice: Right. 


Priyanka Aribindi: I’ll be ready by Sunday. It’s fine. 


Josie Duffy Rice: Right. [music break]


Priyanka Aribindi: On today’s show, a special council report into President Biden’s handling of sensitive government documents cleared Biden of committing any crimes. Plus, the Federal Communications Commission says that it’s immediately outlawing robocalls that feature AI voices. 


Josie Duffy Rice: But first, the Supreme Court yesterday heard oral arguments in a case that considers whether or not Trump can be removed from the ballot in Colorado for taking part in an insurrection. It’s one of the most important cases the court has heard in recent history, not only because the stakes are so high given it’s Trump, but also because it requires them to parse through some very rarely relevant sections of the Constitution. 


Priyanka Aribindi: Right. 


Josie Duffy Rice: No one’s looked at these sections in 100 years. 


Priyanka Aribindi: And it shows. 


Josie Duffy Rice: Yeah, it really does show. The court considered a number of questions in the case, and Trump wins if he only prevails on one of them. And most of the justices, including a number of the liberal justices, seemed convinced by at least one of those arguments that one state cannot disqualify candidates in a national election without Congress specifically granting them that power. All in all, the court’s debate was even more esoteric than usual. I mean, I listen to a lot of these oral arguments, and even I was like, poof. 


Priyanka Aribindi: Yeah. 


Josie Duffy Rice: And as we know, the outcome is going to have a major effect on what happens in 2024 and beyond. 


Priyanka Aribindi: Absolutely. So to help us all understand what happened yesterday and the impact that it may have in the months to come. We called up our good friend of the pod, Melissa Murray. She is a law professor at NYU, a former clerk for Justice Sotomayor, and one of the hosts of Crooked’s Strict Scrutiny podcast. She is also the coauthor of the forthcoming book, The Trump Indictments: The Historic Charging Documents with Commentary coming out on February 27th. Clearly a great person to talk to for all of this. I started out by asking about her thoughts on this hearing in general. 


Melissa Murray: One thing I thought was that the hearing didn’t take nearly as much time as I think seasoned court watchers expected. I had blocked out almost three hours for this hearing, but it happened to be pretty quick. Pithy um there were three advocates arguing, but still it was pretty much around two hours. And I think that led me to believe that both the amount of time it took and the nature of the questions from the justices that maybe they came to this with their minds already made up. 


Priyanka Aribindi: Ah. Okay. 


Melissa Murray: I buried the lead a little bit there, didn’t I? [laugh]


Priyanka Aribindi: Yeah. No no, it seemed like, you know, based on everything we heard, the Supreme Court will end up letting Trump stay on the ballot here. The conservative justices, they definitely seem skeptical of the idea of kicking him off the ballot. But there also seemed to be skepticism from the liberal justices as well. So what kind of questions were they asking? And was this at all what you were expecting? 


Melissa Murray: So Donald Trump made a lot of arguments, both in the briefs and before the court. His lawyer who represented him today in the court was Jonathan Mitchell. Jonathan Mitchell is probably better known as the architect of the Texas abortion bounty hunter law SB eight. 


Priyanka Aribindi: Oh, wow. 


Melissa Murray: So he has a, you know, a very storied provenance in the conservative legal movement and he was representing Donald Trump here, and he made a lot of different arguments. I don’t think many of those arguments got a lot of traction on the court. So, for example, in the briefs and at oral argument, they were really pushing this idea that Donald Trump is not an officer of the United States within the meaning of section three of the 14th amendment. That didn’t get a lot of purchase from many of the justices, and instead, what the justices did seem to coalesce around, and this really came out when the second advocate, Jason Murray, emerged to represent Colorado. The argument that they seem to be coalescing around is this idea that states cannot disqualify federal officials  um or or maybe just presidents. Absent some kind of congressional authorization to do so. So I think that’s going to be the rationale that the court uses here. But I think the top line is that Donald Trump is going to stay on the ballot. And the fact that they were unwilling to really deeply engage in some of these questions suggests to me that they were looking for a pragmatic offramp here, because the prospect of having 30, 34 different ballots, where Donald Trump is not present and this election goes through like that kind of patchwork outcome, it’s not something that is appealing to this court. 


Priyanka Aribindi: Yeah. There actually was very little time spent on Trump’s actions surrounding January 6th, which is sort of what led to this. 


Melissa Murray: Yeah. Yes. 


Priyanka Aribindi: Yeah. What did you make of that? 


Melissa Murray: For the most part, there was no discussion of January 6th or this question of whether or not Donald Trump had engaged in insurrection, or even the argument that whatever Donald Trump did on January 6th, he was protected under the First Amendment, which is an argument that he has made not just here but in other venues as well. They really didn’t engage in that at all. There was one sort of sharp colloquy between Justice Jackson and one of the advocates in which he was like, you know, what was January 6th and Jonathan Mitchell, Donald Trump’s lawyer sort of responded, well it was organized chaos, but it wasn’t an insurrection, you know, leading us to ask, you know, well, what is organized chaos if it’s not an insurrection and–


Priyanka Aribindi: Right. 


Melissa Murray: Honestly. Like that’s a great t shirt for the Crooked merch store, so get on that. Organized chaos. But there wasn’t a lot of discussion about the context in which this particular dispute arose. Nor was there a lot of discussion about the whole question of accountability, which is what section three of the 14th amendment really is about. The prospect of disqualifying those who have been traitors to the United States, and a system of orderly government and the peaceful transfer of power. 


Priyanka Aribindi: Right. And based on the arguments we heard. You know, the questions that were being asked today, are you writing this off in your mind as an outcome we already know. How are you looking at this now? 


Melissa Murray: I mean, to me, the real question here is how fast will they get this done? Super Tuesday is in the offing. And you know, it’s a real question about whether or not Donald Trump is going to be on the ballot in some of those Super Tuesday states. So timing is a question. I think the other question is going to be, what is the vote count here? And I think there’s going to be a lot of pressure from the chief justice to issue an opinion that is unanimous, to have the court speak with one voice here. It wasn’t so clear that we were going to get that kind of unanimity coming out of this. Um. You know, I think Justice Sotomayor made it very clear that she thought some of the arguments that Donald Trump was offering were sort of convenient, what she called gerrymandered arguments meant to mainly get Donald Trump out of this particular bind, but weren’t necessarily really strong interpretations of section three of the 14th amendment. I also think Justice Alito had a really interesting turn in this oral argument in which, you know, he from the bench made some arguments that hadn’t been floated by either side in their briefs. So it was almost like he was second chairing this for Jonathan Mitchell, who was representing Donald Trump. So I think, you know, if we get a unanimous opinion, that would be a win for the chief justice. But I think it’s likely to come with some offshoot concurrences from some of the other justices who want to underline points that don’t necessarily make it into the sort of coalescing view that the court is trying to gather around at this point. 


Priyanka Aribindi: And last question, the Supreme Court may not be done tackling questions around Trump in the 2024 election. Tell us what is next and what, if anything, you are expecting from the court?


Melissa Murray: Well, we just got an opinion from the DC circuit about whether Donald Trump is immune from criminal prosecution because he is a former president. And the D.C. circuit rejected that argument unanimously, um he is not immune. He is no longer president. He is just Citizen Trump. It is very likely that Donald Trump will appeal that to the United States Supreme Court. And I think, given that, it seems all but certain that the court is going to hand Donald Trump a win on this disqualification issue, the real question will be, does the court take its time considering Donald Trump’s request for review of the D.C. circuit opinion before the court? If the court takes its time, that makes it much more unlikely that we are going to see a trial go off in that January 6th DC case that Jack Smith has brought. I think, for the court, if they’re going to give Donald Trump this win on disqualification, it’s really incumbent on them to move very quickly to either deny review on Donald Trump’s request to have the D.C. Circuit’s opinion reviewed and allow the criminal trial to go forward, or to take it up quickly, have oral argument, and just underscore exactly what the D.C. circuit said, that, you know, a former president is not absolutely immune from criminal prosecution for misconduct undertaken during his term of office. 


Priyanka Aribindi: That was my conversation with Melissa Murray, professor of law at NYU and co-host of Crooked’s Strict Scrutiny podcast. More on all of this very soon. But that is the latest for now. We’ll be back after some ads. [music break]




Josie Duffy Rice: Let’s get to some headlines. 


[sung] Headlines. 


Josie Duffy Rice: A special council report into President Biden’s handling of sensitive government documents cleared Biden of committing any crimes. But it also said a bunch of stuff that was downright unflattering of our 81 year old president. The 345 page report paints Biden as a forgetful old man who was careless with classified materials at his home, and who shared state secrets with his ghostwriter. Biden denied that during a press conference at the White House yesterday. The report said Biden, quote, “did not remember when he was vice president. Forgetting on the first day of the interview, when his term ended, and forgetting on the second day of the interview when his term began.” 


Priyanka Aribindi: Not great. 


Josie Duffy Rice: It’s not great. Maybe it’s a coping mechanism. We also don’t want to remember the last few years. 


Priyanka Aribindi: That’s like the nicest possible read we can have on it. 


Josie Duffy Rice: Yeah, yeah, yeah. 


Priyanka Aribindi: We’ll give it to you. Sure. 


Josie Duffy Rice: Maybe he was doing a bit. [laugh] Biden responded to the report by pointing out he spent five hours over two days with the investigator, even while his administration was busy responding to the Israeli-Palestinian crisis that erupted October 7th. Take a listen to an interaction between reporters and President Biden at the White House yesterday. 


[clip of unspecified reporter] President Biden, something the special counsel said in his report, is that one of the reasons you were not charged is because in his description, you are a well-meaning elderly man with a poor memory. 


[clip of President Joe Biden] I’m well-meaning. I’m an elderly man, and I know what the hell I’m doing. I’ve been president and I put this country back on its feet. I don’t need his recommendation. It’s totally un–


[clip of unspecified reporter] How bad is your memory? And can you continue as president? 


[clip of President Joe Biden] My memory is so bad, I let you speak. 


Priyanka Aribindi: All right, listen, it’s a good zinger. 


Josie Duffy Rice: That joke is giving my grandpa, which is fine. He could be my grandpa. 


Priyanka Aribindi: He is on his toes in these moments where he can get his zingers in. And for that, I am appreciative. 


Josie Duffy Rice: The joke only a little bit made sense, but I kind of got where he was going with it. 


Priyanka Aribindi: But anyways, this all just more fodder for the many critics of Biden, who point to his age and poke at his mental state and have made that an issue. And I know that is a concern for so many people. This is just not a great look for people who are concerned about all that. Not helping. Senators hauled their asses back to Capitol Hill yesterday to try and get something done. And this time they sort of did. The Senate advanced a $95 billion dollar foreign aid bill for Ukraine, Israel and Taiwan, which stripped out the provisions for tightening up the border. Republicans, bizarrely, had refused to vote for the version with the border stuff in it, even though they had been demanding that for months. And that is like their number one priority in life. Trump had urged them to reject that plan, apparently because he doesn’t actually want any problem solved on Biden’s watch. This still isn’t the final Senate vote, though, and even after this does get through the Senate, this will still have to get through the House, which could get messy. 


Josie Duffy Rice: And some updates about the living nightmare, that we called Robo Biden, this week. The Federal Communications Commission said yesterday that it’s immediately outlawing robocalls that feature artificial intelligence voices. They’re expanding the 1991 Telephone Consumer Protection Act to include those AI generated and deepfake voices, giving state attorneys general more ground to pursue scam robo callers. All of this comes days after New Hampshire’s attorney general said that he has identified the source of the fake President Biden robocalls that were going around ahead of the state’s primary last month. The statement went on to explain that these types of calls have increased in the last few years, and have the ability to confuse consumers by pretending to be famous people, politicians and even family members. With this new regulation, robo calls featuring AI voices would be subject to the same fines and consequences associated with illegal robocalls that don’t use this technology. 


Priyanka Aribindi: I like this, but I’m not going to lie, I did think it was already illegal to do this. I didn’t realize it wasn’t. So I guess this is great. 


Josie Duffy Rice: Yeah. 


Priyanka Aribindi: We’re finally up to speed with where I thought we were. 


Josie Duffy Rice: You would think you just can’t–


Priyanka Aribindi: You would think. 


–lie and say you’re someone. 


Priyanka Aribindi: You would hope.


Josie Duffy Rice: But yeah, apparently you could.


Priyanka Aribindi: It’s fine. And Marianne Williamson has exited the chat, even though we didn’t know why she entered it in the first place. The self-help author announced that she was suspending her presidential campaign on Wednesday evening. Here’s part of her video posted to X. 


[clip of Marianne Williamson] This one campaign is over now, but that larger arc of American history, it goes on, and it is my deepest hope that we in some way contributed to that larger story. 


Priyanka Aribindi: She was one of only a handful of candidates who were challenging President Joe Biden. She won just roughly 2% of the vote in South Carolina’s Democratic primary last Saturday. And a few hours before the results of the Nevada Democratic primary on Tuesday, Williamson wrote in a post on X, quote, “Biden will not win. I will.” I guess the power of positive thinking didn’t work out for her this time, but I see what she was trying to do there. And in more election news, the Nevada Republican caucuses took place last night, which Nikki Haley was not participating in. No surprises here that Trump took another victory. I don’t think any of this is particularly surprising news, but sure. 


Josie Duffy Rice: And finally, the Super Bowl is Sunday, and a high school football team from the town of Lahaina is headed to Vegas to watch the game in person as special guests of the NFL. The league announced earlier this week that a small group of team captains and coaches from the Lahainaluna High School football team, I love that name.


Priyanka Aribindi: Me too, its beautiful. 


Josie Duffy Rice: Will join them as honorary coin toss captains. A statement from the NFL recognized the team The Lunas as a team that quote, “embodies the power of football to bring people together, even in the most challenging of circumstances,” and to “recognize their incredible efforts in rebuilding their community.” This comes six months after the devastating Lahaina wildfires. Lahainaluna was spared from the flames, but even though students have returned to the classroom, many are still reeling from the loss of their homes and loved ones. When school officials called the Luna team captains into the principal’s office earlier this month, the boys thought they were in trouble for something, but they were overcome with joy when Philadelphia Eagles quarterback Marcus Mariota, who’s from Hawaii, appeared on zoom to surprise them with the news that they were going to the Super Bowl. And if you weren’t crying already, the NFL also said it will help replace all of the Lunas football equipment with new gear free of charge. It’s amazing. 


Priyanka Aribindi: This is an amazing story. 


Josie Duffy Rice: Yeah. 


Priyanka Aribindi: I love this. 


Josie Duffy Rice: We’ll link to the documentary on the Lunas and our school’s fundraiser for its athletic department in our show notes. 


Priyanka Aribindi: I mean, I got to say, they are in for an amazing weekend, obviously at the Super Bowl. But has there ever been a better trip to the principal’s office in the history of trips– 


Josie Duffy Rice: I know. 


–to the principal’s office. 


I was thinking that too. 


Priyanka Aribindi: This is amazing.


Josie Duffy Rice: You, like, truly think you’re about to get in trouble and then–


Priyanka Aribindi: Yeah. 


Josie Duffy Rice: And a NFL quarterback is like, hey, want to come to the Super Bowl? 


Priyanka Aribindi: They’re inviting you to the Super Bowl. 


Josie Duffy Rice: Yeah. 


Priyanka Aribindi: That’s amazing. That is like literally what dreams are made of. That’s incredible. 


Josie Duffy Rice: Yeah. 


Priyanka Aribindi: I love that.


Josie Duffy Rice: That is really good. And those are the headlines. 




Josie Duffy Rice: That is all for today. If you like the show, make sure you subscribe. Leave a review. Stop Robo Biden and tell your friends to listen. 


Priyanka Aribindi: And if you are into reading and not just the insurrection clause of the 14th amendment like me, What a Day is also a nightly newsletter. Check it out and subscribe at I’m Priyanka Aribindi.


Josie Duffy Rice: I’m Josie Duffy Rice. 


[spoken together] And let’s go Lunas. 


Priyanka Aribindi: I love that name too. 


Josie Duffy Rice: Me too. 


Priyanka Aribindi: Very into it. 


Josie Duffy Rice: Who are you rooting for this weekend? 


Priyanka Aribindi: I don’t have a team. You think I have a team in this?


Josie Duffy Rice: I’m rooting for the 49ers. 


Priyanka Aribindi: I think I might be in on the Chiefs. 


Josie Duffy Rice: Okay. That’s cute. We’ll have, like, a little rivalry where none of us really care. 


Priyanka Aribindi: Really care. 


Josie Duffy Rice: I love that. [music break] 


Priyanka Aribindi: What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itxy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers, and our showrunner is Leo Duran. Our theme music is by Colin Gilliard and Kashaka.