A.R. Hoffman on Decision Week at the Supreme Court: ‘Sages of the Sun’ (Episode #13)

This week’s roundtable features a lively, in-depth discussion with our brilliant staff reporter and assistant editor, A.R. Hoffman, on decision week at the Supreme Court.With a landmark religious liberty case already handed down and epochal rulings expected on environmental regulation, gun rights, and of course abortion, America’s legal landscape is in a revolutionary moment.We will also discuss the January 6 hearings, what they mean for 2020 and 2024, and the possibility that President Trump might soon find himself facing criminal charges. Mr. Hoffman holds an A.B. and PhD from Harvard, as well as a law degree from Stanford.Episode 13 – 6/23/2022 -A.R. Hoffman on Decision Week at the Supreme Court Caroline Vik: Thank you for joining us today. I’m especially excited to hear your take on numerous important decisions coming out of the Supreme Court today and then talk a little bit about what you think have been the most important things coming out of the January 6th hearing. So I’ll just kick it over to you to give us your take on the Supreme Court decisions this week.A.R. Hoffman: Sure. Hi everybody and thanks for joining. What a day to be on and what a day to be thinking about the Court. Of course this week is sort of decision week at the Court. There were 18 cases in total. Decisions have been released over the past couple of days. We expect that to continue certainly tomorrow and then possibly into early next week. I think the headline for what we’re seeing is, you know, a court that has undergone dramatic change of personnel and ideology — from the end of the Trump administration — is now starting to really bear fruit. I think there was a sense of waiting a little bit, of seeing would this new 6–3 alignment of a solidly conservative court, would that make a difference? Would that matter, right? Would a middle ground be struck on a whole host of issues? And the results, at least so far and the results in the headline cases, are in fact that this is a court that is now solidly finding its voice as constitutional interpreters. A new era has begun at the Supreme Court and that’s become evident. The most important numbers in the Court right now are 6–3 and we’ve seen that alignment generate a series of epochal decisions. To go through just a couple of them, in a case called Carson [v. Makin], the Court held, and we had covered this extensively, that a program in Maine that distinguishes between state subsidies for secular private schools and religious private schools was unconstitutional. This is a continuation of a line of jurisprudence that has held that publicly available benefits cannot discriminate between religious and secular beneficiaries. This went farther though in making no effort to say that that benefit can be allotted to religious schools but not for religious subjects. That distinction collapsed in this case and that money can flow to religious schools for all of the things that they offer. There’s this centrally religious character and personality. So it’s a major decision in the area of First Amendment religious liberty and the two religious liberty clauses, the Establishment Clause, which holds that Congress can make no law respecting religion and the Free Exercise Clause. That case is likely to open up a whole host of other questions of state benefits to religious institutions. So that’s one area of the law to watch, the sort of religious liberty element.Vik: What do you think are going to be the implications of that law beyond education?Hoffman: The circumstances that gave rise to this situation are pretty unique as fact patterns often are. Maine is the most rural state in the country and this case arose from parents who wanted to send their kids to a religious school through a program that basically said if there’s no public school within a close geographic range that the State can help subsidize, must help subsidize, sending a student to a private school. And so the question was well, you know, can the state distinguish between a secular and a religious private school? In the first instance, this was a decision that covered education. But, the language of the Court, namely that of a publicly-available benefit, is not limited to education, right? So one can imagine a whole host of grants, tax credits, that would touch on other elements of life. A key precedent case called Trinity Lutheran [Church of Columbia, Inc. v. Comer], concerned the renovation of a playground that was on a church property, but one can imagine those kinds of not a purely educational basis. This court has really laid down that in such a publicly available situation, religion cannot be disfavored by the state. We’ve seen a sort of angry and hostile reaction from Maine and from the elective leadership in Maine to this decision, using language such as “bigot,” and that this is supporting bigoted institutions. One thing that comes to mind is a previous religious liberty case called Masterpiece Cakeshop [v. Colorado Civil Rights Commission], about the ability of the baker to refuse to bake something of the wedding cake for a gay couple. That case was decided on the basis of animus displayed by the Colorado council towards religion. I think to a court that’s very sympathetic to religious institutions, this kind of loose language on behalf of elected officials will not be looked on favorably and states might get themselves in further hot water by evincing evidence of hostility towards religion and towards religious institutions. That’s one thing to watch. To continue maybe with some other cases. A case that we also covered and I think predicted fairly well, a case called Vega [v. Tekoh], the Court held again 6 to 3 that the failure to issue a Miranda warning — of course that’s the famous line we all know from TV shows like Law and Order. “You have the right to remain silent. You have the right to an attorney. If you cannot afford one, one will be provided to you.” If a Miranda warning is not given, that does not give rise to a federal cause of action, to sue for monetary damages. Now that might seem esoteric, but what the Court is basically holding and extending is that the Miranda warning is not itself part and parcel of the Constitution. And that it was devised to protect the Fifth Amendment right against self-incrimination, but is itself not the Fifth Amendment. States and localities have options to use things other than Miranda. We won’t see Miranda disappear, but my hunch is that this is a first step in an eventual ruling and eventually a more restrictive ruling of the Fifth Amendment that would sort of cut down on Miranda. Justice Kagan, in a dissent in that case, has a line that’s sort of like “denying a remedy is the first stage to denying the right.” And so the inability to sue over Miranda is a suggestion that the Court is queasy about the Warren Court, a sort of liberal sort of activist court from fifty years ago, extending the Fifth Amendment to include Miranda. Of course if an unwarranted piece of evidence is used in court, that can still be excluded, right? But the argument is beyond that, there’s no recourse for being denied Miranda rights.Vik: So why is the Court queasy about where the Fifth Amendment is today? Where is it today? What kind of constraints are you talking about?Hoffman: To give a little bit of historical context, in the mid-fifties, beginning with Brown v. Board of Education through the late sixties, there was a period known as the Warren Court where you see a tremendous expansion of constitutional, let’s say, rights, that aren’t articulated explicitly in the Constitution. The Constitution bequeaths the right against self incrimination. You don’t have to testify against yourself in a criminal proceeding. You can take the Fifth. And the Court went and said, “well that’s not enough.” It’s not only enough that you have to be told, that you have to be told in this very particular way. That script itself is constitutional, or part of the constitutional right. So we’re seeing that paring back. This is a sort of cousin of rulings like Griswold v. Connecticut which announced the right to contraception through a certain implied right of privacy in the Constitution. Of course it’s also related to Roe v. Wade, to the sort of discovery of a right to an abortion within the Constitution. So in all these ways we’re seeing the current court propose a much leaner understanding of the Constitution and of the Constitution’s reach.Vik: So it’s less that there’s a problem to be solved and rather that the Court now sees that the actual constitutional rights are sort of more limited than previously thought?Hoffman: The Court is limited by the cases that come before it. It can sort of affirmatively set out a sense of a new constitutional vision. Unlike lower courts, any federal court is bound by the case in controversy requirement, namely that the case has to come to it. Someone has to be injured. Someone has to make a complaint. Someone has to come seeking recourse. Now all federal courts, besides the Supreme Court, must hear in one way or another, the cases that are brought before. They can dismiss it out of hand. They can fully dismiss it. They can do something in between, but basically they have to hear it. The Supreme Court decides which cases it hears. Four justices need to sign on to a case for it to be heard and it only takes a tiny fraction of the cases that are presented. So in the cases it chooses, it can start to create a kind of portrait of the constitutional issues it wants to hear. So what we’ve seen in this court, in this term, I think, is a real desire to tackle big constitutional questions. The best example for that is the New York gun case [New York State Rifle & Pistol Association v.] Bruen. The Court hasn’t really heard a gun case since 2008. And it’s not that these cases weren’t being filed. They were, but the Court said we’re not going to touch this for now. [District of Columbia v.] Heller, in 2008, affirmed the right to carry and to have a gun inside your own home for self-defense. And the appetite of the Court changed and the Court felt ready for the composition of the Court change and the Court felt ready to weigh in on these issues. If you think about the Fifth Amendment with Vega, you think about the First Amendment with Carson as the main case, you think about the Second Amendment with the gun case, and then you think about Roe, these are major constitutional heartland questions.Vik: So what was the gun ruling?Hoffman: The gun ruling, and this was issued by Clarence Thomas, some are already calling this the defining opinion of his career. Justice Thomas has been a long time advocate for Second Amendment rights. He’s often said the Second Amendment is not a second class right and that’s this view that governs the opinion in this case. New York had a law where to carry a gun in public, outside of the home, you had to show proper cause. Namely that you weren’t some kind of danger or you had a reason beyond mere self-defense. Self-defense is not a proper cause that can always be claimed. It had to be more particular and even when proper cause was asserted, the State had the ability to reject the claim. It still had discretion. The six justice majority led by Justice Thomas said that that unfairly burdens the Second Amendment right to have to show cause beyond sort of self-defense. And in order to do that Justice Thomas looked at the history of gun laws and of self-defense and bearing arms in the Anglo American tradition and discovered no deeply rooted understanding that to carry a gun, one had to not only be a kind of lawful law-abiding citizen, which the plaintiffs in this case were, but that you also have to show proper cause. It’s a really fascinating moment in the decision which just came out about an hour ago, where Justice Breyer, who is retiring from the court, and so these cases are worth reading, I think. Each of his opinions will be his last opinions on these subjects. [The opinion] begins with a recitation of gun violence in America and begins discussing recent shootings and talks about how many guns there are in the country. And so it’s clear in this sort of withering response that the majority kind of basically says it has nothing to do with a constitutional right. I think that’s true of the country at large. You see an increase when people are coming at this from two different directions. Justice Breyer is reading the news. He’s watching the news. He’s saying, you know, at this moment, at this time, we have this bipartisan gun deal. This is the wrong time to sort of make guns easier to use and to carry. Justice Thomas says — rooted in the Constitution, rooted in history — that this is not a second class right to be revoked. Based on the headlines, you have a profound clash in sensibility. I think what made this case interesting was that the law at issue in New York, [the] Sullivan [Act], which we’ve covered extensively and which a colleague of mine had a really extensive three-part deep dive into, is itself a hundred year old right. You’re starting to see people ask how long is our history? Is something that is a hundred years old deeply rooted? Justice Thomas is going back to a deeper history of bearing arms.Vik: Fascinating. So I know we’re still waiting on Roe v. Wade. Are there other key decisions that we’re expecting?Hoffman: Yeah, one important decision has to do with immigration. This is a very complicated subject. Basically, the Trump administration implemented what’s called the “Remain in Mexico Policy.” This is a policy for migrants apprehended at the border, that they would be returned to Mexico while their status was being processed and in fact, many were, tens of thousands of people. We’ve seen, as one of the key policy changes, a sort of lessening of illegal immigration. Now the Biden administration has been in a strange spot. On Biden’s first day in office, he revoked this policy. Now the problem with that is it’s not clear that he was able to do that and this has been in the courts for a while because it has to do with a congressional statute and it has to do with how you read that statute. The Biden administration says “Well, in order to send people to Mexico, we need an agreement with Mexico. We need all these preconditions.” It’s something we see as sort of a negative. On the other hand, this administration, on the crisis at the border, sort of would like to see this policy stay in place. There’s been a sort of interesting two-step where the Court and the Administration has challenged this policy while they’re have been indications that actually it’s kind of useful for them. And that actually a Supreme Court decision mandating that it stay in place might be actually the best of all worlds because then they can say, “Well you know, our hands are tied on this matter.” One of the issues, and interestingly, I’ve gone back and read some of the oral arguments in this case before the Court. The Court, I think, is finding this case a frustrating one because it feels a lot like setting immigration policy and the statute is kind of poorly written and so the Court is always weary about setting policy. I forget one justice, in the oral arguments, said “This is above our pay grade. This is a political question. This is a policy question.” So we’ll see how that shakes out. In terms of another decision we are watching is a big EPA decision that concerns the government’s ability to regulate environmental regulations. There has been a sense of movement on constitutional matters affecting the regulatory state. It would be interesting to see. I think there’s no doubt the current court is more hostile to overreaching administrative regulation and so that might not be as sexy as some of the other cases we’ve mentioned, but the long term effects of that could be significant. Then of course there’s Dobbs [v. Jackson Women’s Health Organization], the Roe case, which we’re expecting likely tomorrow or Monday. I think a lot of ink has already been spilled on Dobbs. One piece I wrote looked at a series of very warm comments that Justice Sotomayor made about Justice Thomas. Now, she has said nice things about Justice Thomas in the past. Vik: What were the comments?Hoffman: She described his kindness. She said he was the only person who knew the name of everyone who worked in the building and just described a really warm relationship. She has spoken kindly of him in the past, but what was noteworthy was when this case [Dobbs] was argued in court, she had discussed the stench of politics that was infecting the Court and corrupting it. And so, you know, news seemed a little bit strange to be sort of extending an olive branch and I wondered out loud about, you know, was this indicative of a compromise, or change vis-à-vis Roe? I think there’s no doubt that the Chief Justice would like to see a sort of compromise in oral arguments. In the case he kept kind of zeroing in on it. Is there a way to square the circle? Is there a way to uphold this Mississippi Law while not overturning Roe v. Wade? I don’t know if there’s any appetite for that. In the cases we saw, we didn’t see the Chief Justice acting as a kind of middle bridge or mediator in any way. He joined the majority in all of the decisions we’ve so far discussed, but I have no doubt that is happening. The Court, at least in terms of the gun case, seemed impervious to outside noise and so it seems that sort of the public uproar over Roe might not influence things behind the scenes. But who knows? One relevant possible precedent is 2012, the Obamacare decision where everyone thought it was dead, that the court would strike down Obamacare. At the last moment Justice Roberts affirmed the individual mandate and kept the law alive even as they struck down the Medicare expansion.Vik: So is Roberts, in sort of a way, seemingly from time to time, trying to take this middle ground sort of approach? Is that driven by a legal philosophy or is that strategic thinking? You know, defensive protective behavior on behalf of the Court? Where does that come from?Hoffman: It’s a great question. Justice Roberts famously said in his confirmation hearing that it’s the job of the justices to call balls and strikes and to be an umpire not a player on the field. I think there was a sense that historically the role of Chief Justice is to sort of protect the Court. In a larger sense, associate justices can basically speak for themselves and speak for their own unconstitutional understanding. The chief justice, in some way, is the chief justice of the United States, not of the Supreme Court. And so there’s a way in which there’s a kind of leadership role there. The common take is that Justice Roberts is especially attuned to questions of the Court’s legitimacy, credibility, and that historically speaking, the rule of thumb with the Court was the Court never gets too far ahead of public opinion. The best example of this is Obergefell [v. Hodges], the gay marriage case. By the time that was decided, a tipping point had already happened in American culture and since then support for gay marriage has risen even further. But the point is, it’s really the first breach in that sense. I think the decisions so far have suggested that this court is less interested in that. The interesting thing, thinking more broadly about Roe, unlike other social issues, in which America has largely moved to the left, gay marriage is the best example. You currently have over 70 percent of Americans who support gay marriage including over 50 percent of Republicans supporting gay marriage. Abortion doesn’t budge. It depends how you ask the poll, but basically it’s a 50-50 issue in one way or another. And so you know the question is, you know, it’s not clear what signal that sends. There’s not like a runaway train that the court majeure is jumping on. The Court in this sense is sort of out in front. The question about Roberts is you traditionally had swing voters on the court. Famously, again to go back to the last Court, Anthony Kennedy was a swing voter. To some extent on abortion, Justice O’Connor was a swing a swing voter. It’s sort of like you can’t mediate without a swing voter. So the question for the Chief Justice is if he knows Roe is going to be overturned, is it better that it’s 6–3 rather than 5–4? I think that’s the question. I think the feeling is yes because at least to some degree, of you know, a solid margin. So the question is to truly broker compromise, Roberts needs somebody else. The question is, is there any appetite among the other conservative justices to occupy a kind of middle ground? The most interesting justice in that respect, not so much about Roe but just generally, is Gorsuch who has a kind of independent streak, but I don’t know if he’s going to be willing or interested in stepping out. There were some rumors that Kavanaugh, and based on oral arguments, might be a likely source to shift. I think it’s hard to know. I don’t think that this would affect his reasoning, but I don’t think it’s a coincidence that you saw an attempt to murder him. In a way he’s becoming kind of a target. I think a lot of it has to do with his confirmation hearings, but on this issue, there is a sense in which he’s less firm on this than someone like Justice Coney Barrett or Justice Thomas.Vik: What in the comments and oral arguments indicate that?Hoffman: I don’t have them on hand, but sort of like Justice Roberts’s questioning of how far the Court should go. There is clearly a desire to affect a change. What we saw in Alito’s leaked draft was an uncompromising, entire rejection of Roe, as far as you can go. The question is will that be clawed back at all, or somehow limited? I don’t think it’s crazy to think that there might be justices who signed on to that draft opinion, whether it’s Kavanaugh or Roberts who are a little more cautious in terms of how this finally plays out.Vik: Got it.Hoffman: I think there’s also a broader issue here. We’ve already seen heated language in response to the main decision. Governor Hochul and others in New York have already, in the last hour, responded very angrily to the Bruen decision, and that will be another rhetoric when it comes to abortion. So there’s what is happening inside the Court and then how the Court’s opinions are playing more broadly. I was interested in the reports that said Vice President Harris is meeting with the states’ attorney generals to plan a response if Roe is overturned.Vik: What would that response potentially look like?Hoffman: It’s hard to say. It’s getting into constitutionally dicey waters here. They’ve already said they’re going to explore what they can do through executive order. We ran a piece by a colleague of mine, Stephen Prager, suggesting that the government could use federal property somehow to offer abortions would be a radical and interseting thing to do, but its hard to see just because they’re already abortion laws on the books that are ready to go into effect the second that Roe falls. So I think what you’re going to see is a real cleavage between states that abortion is outlawed and states where it is not and a kind of sorting will happen.Seth Lipsky: It’s an incredible thing to imagine a vice president of the United States meeting with state officials in order to foil or undercut a Supreme Court decision. It’s breathtaking.Hoffman: Entirely, and that’s what grabbed my attention. Lipsky: It reminds me of George Wallace standing in the schoolhouse door. In the religion case in Maine, I thought Chief Justice Roberts, who’s normally considered a man who wants to protect the institution from controversy, but who wrote the Court’s opinion in the main religion case, really laid the hate out where the rest of us could get to it. I mean he accused the state of Maine of having practiced religious discrimination. He was really standing up for the civil rights of religious people in Maine. I’ve rarely seen it put so bluntly as Roberts did in thirty years of covering this. It’s just remarkable.Hoffman: Yeah, it seems like, on this religious liberty question, this court is sure where it stands. It knows where it stands. As I mentioned, this has been building. Cases like Trinity Lutheran, cases like Espinoza [v. Montana Department of Revenue]…Lipsky: And Hosanna-Tabor [Evangelical Lutheran Church and School v. EEOC] which said not even the Equal Opportunity of Employment Commission can bring a case against a church over hiring matters of their ministers. You can’t even enforce discrimination law against a church and the hiring of its minsters.Hoffman: Entirely, and I think what you’re likely to see is increasingly strident dissents. You saw it in the Maine religion case with Justice Sotomayor who really sort of warned against where the Court was going. You see a real fiery dissent from Justice Kagan. You know, the 6–3, sort of hardened vision, I think, will put them in a tough spot going forward.Lipsky: It seems to me that you can characterize this court as sort of an emerging civil rights court. The Second Amendment is a civil right in the Bill of Rights and these are expansive decisions for civil rights.Vik: Is it accurate to say all but the Fifth Amendment one is an expansive right?Lipsky: The Fifth Amendment one is not an expansion of the Fifth Amendment right. The Miranda warning, as Ari pointed out, is not part of the Constitution. It’s a subsidiary detail.Hoffman: I think It’s a civil rights court in that way. In another way, it’s a historian’s court in the sense that each of the decisions have been grounded in a historical read. Even Alito’s Dobbs draft talked about what is rooted in this historical, American, legal experience so we definitely see a return to text and history guiding these decisions.Lipsky: You know, we’ve come to a period in this country’s history, maybe fifty or seventy-five years, where it’s the liberals who thought they were the civil rights party, but these current batch of civil rights issues are ones being cherished by conservatives and fought for by conservatives. It’s just a change in historical pattern. It’s one reason why there’s such anger over it. They’re losing their mantle of being the civil rights party.Hoffman: And we see that in the tenor and tone of Justice Thomas’s opinion in the gun case. I come back again to this sense that the Second Amendment is not a second class right.Lipsky: It may be the oldest of all civil rights, the right to self-defense. It’s why the justice before him, the great abolitionist jurist, St. George Tucker called it the palladium of all our liberties.Hoffman: If it’s okay with you I’d like to talk about January 6th for a little bit.Vik: Yes, please. I know you’ve been watching closely. I admit I’ve been watching less closely and I want to get the highlights from you.Hoffman: Frankly, I think two things can be true. On the one hand, the Sun, in both our editorials and in our news coverage, has exhibited a healthy skepticism towards a kind of made for TV, one sided account of the facts. On the other hand, the case that has been laid out, I think any fair-minded observer would agree, is damning and troubling to say the least. I think where our interest now is migrating is beyond the hearings to the possibility of criminal charges. That I think is the real cash-out of this. There’s been a debate within the Committee itself about whether they will make an official referral of criminal charges. The Chair has said they won’t. Liz Cheney has said “We might.” To me, at this point that doesn’t really matter. The referral is in the staging of this. Merrick Garland, the Attorney General, has said “I’ve been watching and my lawyers have been watching.” We have an editorial coming that really looks, in a real way, about what this prosecution would look like. Will President Trump be charged with federal crimes? It would be a cataclysmic decision to try a former president.Vik: Which crimes? Hoffman: There are a few. Obstruction of an Official Proceeding is one that’s been discussed. Seditious Conspiracy, which a number of Proud Boys and Oath Keepers — a radical sort of militia — have already been charged with. There’s a crime around the incitement of violence. The Senate already heard some of this in an adversarial impeachment preceding and acquitted President Trump. Another important decision here is who is the right person to try a former president? Of course normally that would be the Attorney General. The question is, is there a conflict of interest in Merrick Garland working for President Trump’s once and perhaps future political opponent? That seems like a tailor made conflict of interest. In that case, is the appointment of a special counselor, what used to be called a special prosecutor, in order? That has its own pitfalls we know from Robert Mueller and Kenneth Starr in this whole history of this strange, special counsel and of course any trial would likely bleed-in past the next election. That would, I think, be the main incentive for a special counsel. If the Justice Department was prosecuting it, I’d imagine Trump, on his first day in office would nix it. In a funny way, the Trump administration did exactly this in appointing John Durham at the end of the last administration, where the feeling was to investigate Hillary Clinton and Russia issues. The idea was by appointing Durham, you protect him from being fired. Special counsels can only be fired and they can only be impeached or fired for a good cause which protects them through change of administration. Of course that’s also what makes them constitutionally troubling is that they’re not accountable to whatever administration is in office.Vik: Can they go in front of a jury?Hoffman: Yes, the special counsel is empowered to do anything a prosecutor can. He’s given a budget and expansive investigative and charging powers. This is a decision that’s going to be made at the highest levels with the president and the attorney general. Whenever a prosecutor charges, one, do you have a case? Can you prove that case in court, not just on TV? And three, the question there will be what if we win or what if we lose? A case like this would really divide America further in a deep way.Vik: So what are the key pieces of evidence that have come out? Hoffman: One issue, and this isn’t strictly necessary, but I think is an indication that this was a coordinated campaign, and that involved pressure on Pence. That involved pressure on state officials. The investigation is really starting to turn on a lawyer named John Eastman. John Eastman was Trump’s personal attorney who really sort of devised or proposed a series of legal arguments about how this could happen. You’re already starting to see this. The Justice Department just began subpoenaing and focusing attention just yesterday on some of these so-called fake electors, this sort of like shadow electors who the Trump campaign encouraged to kind of meet and cast their vote for Trump. You’re starting to see a kind of interest in the infrastructure beyond just the kind of storming of the Capitol itself. Remember 865 people have already been charged just in the storming of the Capitol so this is really a massive law enforcement kind of effort. There has been, interestingly, and I’ve reported on this as well, tension between the Justice Department and the January 6th committee. This seems like classic DC turf wars. You’d think they were sort of aligned and yet justice has become increasingly frustrated. The Committee is not sharing their transcripts and other materials with the Justice Department. Vik: Why is that? What do you think?Hoffman: It’s strange. The Committee says “Well we have to finish our work. Then you can have them.” Justice says, “Okay your work is whatever, but we actually have to run trials.” The Committee has just announced that these hearings will extend to July. The reason for that is this new material. One thing to watch is the Trump campaign had hired a documentarian, named Alex Holder, to videotape the campaign. The idea was for a kind of posterity and legacy. Those videos have been subpoenaed and turned over to the January 6th committee. These tapes are likely to be aired and shared in future hearings.Vik: So you would summarize it like there’s more? Like the most damning stuff has come out and that it was more of a coordinated effort than it may have appeared previously?Hoffman: Yeah, and again that’s not really necessary. You’d have to look at what each of these charges require. The core issue is going to be Trump’s state of mind. To be guilty of many of these crimes, you have to know or believe to know what you’re doing. And the argument is going to be, the defense is going to be, well he believed it. And so you know, what the Committee has tried to do is sort of tie him tightly to people like Eastman and others who knew that this was not based in fact, or whatever. But proving a state of mind is hard, especially with someone like President Trump where it is kind of unclear on what he knew, what he believed, what he thought. I mean, he certainly has never wavered in his belief that the election was rigged. He revealed, in response to the Committee last week, which we covered, that it was a full-throated claim of a stolen and rigged election, so that would be true. Lipsky: The one area I think President Trump is in danger, legally, or the biggest danger is if the prosecutor can convince the court that there was an attempt of insecurrection. Then they get into the principles that were uttered by John Marshall in the case of the conspirators with Aaron Burr, and he said they weren’t guilty because conspiracy hadn’t been brought into action. But once it’s brought into action, no matter how far you are from the center of the conspiracy, if you were linked in any way whatsoever, no matter how minor, you are guilty. And that’s where Trump is in danger in my opinion.Vik: What would it legally take to be an insurrection?Hoffman: This is a tricky, tricky matter. To Seth’s point, conspiracy requires a kind of plan and an overt act. You have to do something about it, but that overt act can be done by anyone in the conspiracy. So if the three of us have a conspiracy, and then we agree on a plan, and you go and do something, we’re all guilty as if we acted together, in concert and in unison. Insurrection is basically an armed uprising with the intention to overthrow the government. The defense is partially going to be that this was unplanned. That it was a mob that was out of control and they lack that kind of core component. What Seth and I have discussed multiple times, the vote not to certify the election is not itself an insurrectionist act. That is a vote that is provided for by the Electoral Count Act. This came into play with a lot of the arguments to disqualify candidates as insurrectionists based on the Fourteenth Amendment. It’s not enough to say “I don’t think the election was right.” You really need to show that they meant to overthrow the government. Around fake electors, with coordination against state officials, Trump is already under criminal investigation in Georgia, not separate fact but separate proceedings over attempts to influence Brad Raffensperger, the Secretary of State, and others to throw the electoral votes to him. The legal peril is very real here for President Trump. Now, he will have to be convicted by a unanimous jury. And in the sharply divided nation, who knows? I will say if that jury is in Washington DC, a city where over 90 percent of voters voted for Joe Biden, I’m not sure I like his chances.Vik: We’ll see what happens next. So a question on Eastman, you said they’ve made it clear that Eastman did not think that the election was stolen, but we’re sort of proceeding anyway. Is that an accurate description?Hoffman: The claim is that Eastman knew that some of this was bogus.Vik: And the rationale for going ahead was? Hoffman: I forgot who it was, whether it was Barr or someone else, they basically said you know, within Trump’s inner circle, there was team normal and team crazy. Team normal were people like Bill Barr, some of the vice president’s staff, that basically sort of said “You contested the election in court, but it’s time to give up.” In the chaotic final days, the President assembled around himself a group of people who were sort of willing to think outside the box to put it mildly, which was what he wanted. And this included people like Rudy Giuliani and John Eastman, and others. I think plans were proposed that were counter to the constitution. The argument will be that these were brainstorming sessions where we were exploring our options. Then the question of state of mind will matter. Some of those powerful testimonies of the other day by the speaker of the Arizona House of Representatives, a lifelong Republican and Trump supporter, sort of detailing the pressure he got directly from the President in phone calls and from Rudy Giuliani. The key line here was when that speaker said “Where is the evidence?” And Giuliani said, “Well we have theories. We don’t have evidence.” Lines like that will suggest that they knew that the evidence wasn’t there and to ask people to do what they were asking them to do.Vik: I read that a lot of these plans were put in place ahead of the election.Hoffman: Right, so that is another element there. That there were these, you know, plans in place. But to convict, you have to really look in a granular way at what these charges require you to show and you’d have to show with admissible evidence and the rules of evidence, that every step along the way those requirements were met with the understanding that this will be appealed to the Supreme Court.Vik: Well thank you, Ari. This has been fascinating. Hoffman: Thank you. It’s a busy week and a great week to be reading the Sun and I’m sure as soon as the abortion case comes down, we’ll have an occasion to talk again.Vik: All right. Thank you so much, Ari. We will talk to you all next week.Sages of the Sun is a weekly podcast produced by The New York Sun. The Sun is committed to upholding the finest journalistic traditions and staying true to our motto, “It Shines For All.”Seth Lipsky is a seasoned veteran of the news business, and among the most revered American editors. He previously spent 20 years at the Wall Street Journal, launched the Jewish Daily Forward, and first revived the Sun back in 2002.Caroline Vik has more than a decade of experience in policy-making, with years spent on the Senate Foreign Relations Committee, at the Department of Defense, and on the National Security Council.

A.R. Hoffman on Decision Week at the Supreme Court: ‘Sages of the Sun’ (Episode #13)

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