on the very same day that the disgraced ex-president was supposed to go on trial in a federal courthouse for his efforts to end democracy as we know it that little January 6 Insurrection the highest court in the land today kept him on the ballot in a ruling that Dodges the facts of January 6 and Trump's role in it but instead the Supreme Court handed Trump a second gift in as many weeks on a constitutional technicality in an unsigned opinion the justices say that states do not have the power to
Bar candidates from running for federal office they say this quote because the Constitution makes Congress rather than the states responsible for enforcing section three against federal office holders and candidates we reverse they're referring to the decision by the Colorado state supreme court now that Court found that Trump did engage an Insurrection by trying to overturn the will of the voters by any means possible including violence and that section three of the 14th Amendment does in fact
apply to the presidency now the Supreme Court's decision today does not touch on either the question of whether Trump is or is not an insurrectionist or whether the text of section three applies to him instead it says that only Congress has the power to do anything or to enforce the 14th Amendment and as Colorado Secretary of State Jenna griswell points out in her reaction to today's ruling quote if we had a functioning Congress we would not be in the situation we're in today with American democ
racy in a separate opinion the three liberal justices blasted the majority on the Supreme Court for closing the door on the possibility a federal courts disqualifying Trump or any other candidate who would engage in an Insurrection writing this quote section three serves an important the rarely needed role in our democracy the American people have the power to vote for and elect candidates for national office and that is a great and a glorious thing the men who drafted and ratified the 14th Amen
dment however ever had witnessed an Insurrection and Rebellion to defend slavery they wanted to ensure that those who had participated in the Insurrection and imp possible future insurrections could not return to prominent roles today the majority goes beyond the necessities of this case to limit how section three can bar an oath breaking insurrectionist from becoming the president although we agree that Colorado cannot enforce Section 3 we protest the majority's effort to use this case to defin
e the limits of federal enforcement of that provision that's where we start today with some of our most favorite experts and Friends former lead investigator for the January 6 select committee Tim ha's back with us he testified in the Colorado case when it was in front of the state's Court senior editor for slate and host of the Amicus podcast Dalia lithwick is back with us with me at the table once again former top official at the Department of Justice and MSNBC legal analyst Andrew weissman's
here and Princeton University University professor and distinguished political scholar Eddie glad is at the table so nice to see you my friends um let me start with the what of it Andrew Weissman with you um what did the Supreme Court say and do today um so they did a lot more than we thought they would do uh everyone after the oral argument thought that Trump would be allowed to be on the ballot in Colorado and frankly any of the others States and just explain why we knew that why we thought th
at um cu the argument that you a lot of times people say you really can't tell from an argument here there was there was just no friendly question and you had no friendly question you had a legitimate argument and you had sort of the atmospherics of the Court being we don't want to be the ones deciding this the reason they went further and the reason this is a 54 decision is where it sort of went to everyone agreed he can be on the ballot in Colorado and that the states cannot decide this the re
ason it's 54 and notably the men versus the women which was just a remarkable split um with with Amy Cony Barrett joining the three so-called liberal justices was that they said this applies not just to the presidency but all federal office holders technically what was before them was just the president but more than that the big sort of five4 split was that the majority said only it's not that the states can't do it it's that only Congress can do it so you're picking the one institution that is
completely dysfunctional um and isn't going to do it so if you want to the big picture you want to read this provision out of the Constitution they the only way to do it is to say Congress has to enact a legislation to implement section three um no room as you pointed out for the courts the federal courts to to step in that's the part where Amy Cony Baris said look why do we need to reach that you are sort of needlessly inflaming um in a political year the issue when we our job in the court sho
uld be to try to just decide this issue and lower the volume um lowering the volume by not weighing in Tim ha on whether he is or is not an insurrectionist yeah it's doesn't touch the Core Fact Nicole the Supreme Court decides questions of law not questions of fact uh they as Andrew just explained found that section 3 of the 14th Amendment cannot be invoked by a state government it has to be invoked by Congress the the some of the justices went further and said it'll take actual enabling legisla
tion but what America should take away from this is that that's a question of law not a question of fact Supreme Court didn't find that Colorado was wrong in its finding that former president engaged in Insurrection they they actually found that he did several states have similarly found much as our committee recommended and those are the allegations the factual allegations that are going to come before Federal juries barring Supreme Court ruling on an immunity question down the road so it's a v
ictory for the president because it keeps him on the ballot but again it just doesn't touch really the core issue here was whether or not what he did on and before January 6th was criminal we found that it was special Council has alleged that it is and ideally a jury will get to decide that question uh in some months ideally um Dalia let me show you what judge ludic said on this show um we're we're down in the weeds but I think our viewers have along umide me we've all earned our our honorary la
w degrees right over the last six years um so it's a little technical consider yourself Warren but but here's judge ludig um offering a different legal analysis it is not necessary in order for the former president to be disqualified or for any other person who comes within the Ambit of of section three to be disqualified that he or she have been uh convicted of an Insurrection or or Rebellion uh nor is it uh necessary that the Congress of the United States have found uh that the former presiden
t or any other person have engaged in Insurrection or Rebellion against the Constitution of the United States that's what that's what we call um uh in constitutional law uh the the self-executing uh character if you will of section three uh it does not require uh a congressional finding and it does not require criminal conviction I guess what's so amazing um I I've been back in the chair six days and this is the second day where another body is is I guess it's the same body doesn't want to deal
with the whole Insurrection thing doesn't want to deal with the extraordinary nature of what Trump did they're not allegations Trump carried out an Insurrection um by by November it'll it'll be part of his convention video right I mean it's it's it's who he is he's running as an insurrectionist he's running on pardoning his fellow insurrectionists his insurrectionist accomplices in the Congress are ascendant the people who are won't quite as into it are either gone out of office or retiring and
resigning and now you've got the Supreme Court living over on Earth too or maybe that didn't happen and maybe maybe not the voters will get to see all the facts in this case against him it it's such an interesting problem because on the one hand you have the court performing what looks like some version of institutional humility right who are we to decide whether an insurrection happen you know who are we to decide um you know these complicated questions Congress has to decide that looks like it
's a kind of democracy expanding democracy affirming move and it's very much I think you know in line with the we're umpires we're balls and Strikes people we do as little as possible um I guess I would just note two things in response to that one is and this comes up in the concurrence that the three liberals offer which is they they literally name check dobs and they say all you needed to do was do what chief justice Roberts said it we do in dobs which is decide as little as possible the court
clearly did not do that today they foreclosed a whole bunch of different Avenues but it's also and this is where it's really sneaky the court doesn't actually tell us what that enabling legislation would look like so even if Congress could shake it off tomorrow get it together you know write some kind of meaningful legislation that could in fact knock an insurrectionist off the ballot the court reserves to itself the power to tell us whether or not that's okay so it is both the most braggy humi
lity and the most sort of humble braggin in the history of humility it's such a strange posture for the court to want to stay out of it while yet again putting a thumb on the scale for Donald Trump Ed I'm just thinking I'm not a lawyer by any stretch of the imagination every day and failing the one else right but I kept thinking about the I keep thinking about the historical parallels yeah I'm thinking about the Civil War amendments I'm thinking about radical reconstruction between 1863 and 1877
right and I'm thinking about the context of the 14th amendment in response to Andrew Johnson's refusal to hold the South accountable right to hold I mean we have literally traders who are running for office who are taking hold of The reigns of power in the south after leaving over 600,000 people on the battlefield dead and people are like no we have to hold these folk accountable and so the Civil War amendments emerge in a context the third section three emerges in the context to hold folk acco
untable and here we have in this context right a hesitance that's a reticence a refusal to hold this man accountable and those folk who engaged in insurrection it's a historical Echo that has all that screams with irony for me at least
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