The following is a transcript of an interview with CBS election law contributor David Becker, founder of the Center for Election Innovation and Research, broadcast February 11, 2024.
MARGARET BRENNAN: For more on the lawsuits against former President Donald Trump, we’re joined now by CBS News election law contributor David Becker, founder of the Center for Election Innovation and Research. David, I’m glad to have you here. It’s been a very busy week on the presidential legal front. But it started with a very important ruling from the Washington DC Circuit that a former president does not have immunity from criminal prosecution. Donald Trump says he plans to appeal to the U.S. Supreme Court. Do you expect them to take up this matter?
DAVID BECKER: Well, I think it’s almost certain that he will appeal. The deadline is tomorrow, it’s Monday. And then I think it’s unlikely that the Supreme Court will address this issue. This is a very strong opinion. They are three judges from the D.C. Circuit, often considered the second-highest court in the country. They were nominated by two different presidents from two different parties. And it’s a per curiam decision, which means they’re speaking with one unanimous voice, and they’ve very clearly rejected that idea, and that’s a somewhat extreme position, where a president of the United States enjoys blanket and complete immunity for any criminal acts it may have committed. And that’s a very, very strong opinion that I think, uh, a large majority of the Supreme Court will find compelling.
MARGARET BRENNAN: What will be important…
DAVID BECKER: Yes, yes.
MARGARET BRENNAN: –so- that they even say it’s the law of the land here, but Donald Trump has repeatedly argued to his supporters, as you know, that everything he says is fake, but on this point, he said, it will be For paralyzed presidents, without total immunity, the “opposing party… can extort and blackmail the president by telling him: ‘if you don’t give us what we want, he will indict you for the things you did while in office.” so that?
DAVID BECKER: Well, first of all, they address this in their opinion, the D.C. Circuit does, and they applied this balancing test and they really thought that the executive branch as a whole, not a president in private, but the executive branch and the The public has the right to expect accountability from the president. But more than that, it indicates a lack of understanding of how the justice system works, particularly in the criminal context. In every case Trump faces, whether federal like in Florida or Washington DC, or state-based like in New York and Georgia, grand juries have been convened. Prosecutors had to present evidence before a citizen grand jury, and they returned these indictments in each of these cases. And even after that, prosecutors face the very heavy burden, beyond a reasonable doubt, of proving to a jury of his peers that he committed these acts. Can you imagine how much weight prosecutors have over them when this happens? This is an independent investigation. There’s no interference from politicians on this sort of thing, and they’re going to end up having to prove their case to a jury. And you can imagine what would happen if a jury exonerated President Trump in one of these cases and how that could be a political boon for him.
MARGARET BRENNAN: You just did a really good job explaining how the system works. But for those who only hear the political slogans, what they see is that Joe Biden is not being prosecuted by the Justice Department for mishandling classified information. Mike Pence wasn’t either, but Donald Trump was, not least because he also worked hard not to hand over these documents…
DAVID BECKER: –That’s true–
MARGARET BRENNAN: — to law enforcement when they requested their return. For those who see this as unequal justice, how do you respond?
DAVID BECKER: Well, I think this week was a very good indication of how the Justice Department acts as independently as it does. We heard earlier that the Biden administration was clearly unhappy with the release of the Hur report on the investigation. And if they actually had as much power over the Department of Justice as former President Trump claims, this would not have been made public, that is clearly the case. Also, I think, ironically, we should note that one of the four charges against former President Trump in Washington is interference in the Justice Department. He allegedly interfered with the Justice Department judge, tried to get him to investigate an election where everyone agreed there was no fraud, and that it was legitimate. And so I think that represents, again, a sort of politicization of this idea that anything that happens against the other side is good, anything that happens against our side is bad. But here we see that President Biden and former Vice President Pence were treated very similarly. And former President Trump was treated differently, primarily because he hid these documents, even when asked, and did not open his doors to investigators to review them.
MARGARET BRENNAN: And you can read the indictments to see the details of the efforts he made there. But, in the… you were in the Supreme Court courtroom this week, as they debated this Colorado 14th Amendment case that excluded Trump from the ballot because of his alleged role in the insurrection. The impression seems to be that the justices will rule against the state of Colorado. Is that what you left with?
DAVID BECKER: I think it probably will and it might even be unanimous. I think what we saw was such an illuminating argument. The nine judges were really talking among themselves and what seemed to trouble them all was the idea that a single state could make a decision on this issue, even after an evidentiary hearing, as had been done Colorado. And that they could essentially set the qualifications for a president, just one state for all 50, or that multiple states could come up with different ideas for qualifications. And for the presidency in particular, this is the most unusual election we have. It is the only one that has electors and electoral votes. So I think it’s likely that the court will rule that he can remain on the ballot.
MARGARET BRENNAN: All right, David Becker, always great to have you.
DAVID BECKER: Thank you, Margaret.
MARGARET BRENNAN: We’ll be right back.
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