• The Supreme Court ruled unanimously on Tuesday that former President Donald Trump can stay on Colorado’s primary ballot. This reverses a decision by Colorado’s Supreme Court, which ruled that Trump could be disqualified based on his actions on January 6th, and the 14th Amendment’s stipulation that insurrectionists cannot hold public office. To understand the Supreme Court’s rationale, we spoke to Leah Litman, co-host of Crooked’s “Strict Scrutiny” and professor at the University of Michigan Law School.
• Today is Super Tuesday. Voters in 16 states and American Samoa head to the polls, and one of the states we’re keeping a close eye on is California where several House races could determine which party will take control of Congress. We spoke with Marisa Lagos, KQED politics reporter, about how these California races in several swing districts got so competitive in the first place.
• And in headlines: the Supreme Court temporarily blocked Texas from implementing its harsh new immigration law, the first OTC birth control pill heads to pharmacies, and French lawmakers make abortion a constitutional right.

Show Notes:

• Crooked’s Strict Scrutiny – https://crooked.com/podcast-series/strict-scrutiny/
• Vote Save America – https://votesaveamerica.com/
• “Biodiversity footprints of 151 popular dishes from around the world” – https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10880993/
• What A Day – YouTube – https://www.youtube.com/@whatadaypodcast
• Follow us on Instagram – https://www.instagram.com/crookedmedia/

TRANSCRIPT

Josie Duffy Rice: It’s Super Tuesday, March 5th. I’m Josie Duffy Rice. 

Tre’vell Anderson: And I’m Tre’vell Anderson and this is What a Day informing you that eating French fries is officially an eco conscious act. 

Josie Duffy Rice: Yes. A recent study out of University of Singapore looked at 151 popular dishes from around the world and found that French fries were the least threatening to the environment and biodiversity. 

Tre’vell Anderson: Listen, I knew I was a hero to Mother Nature. I just didn’t exactly know why [laugh] [music break] Super Tuesday is today, and we will explain how control of Congress could depend on some competitive California House races. Plus, the nation’s first over-the-counter birth control pill hits store shelves soon. 

Josie Duffy Rice: But first, let’s talk about yesterday’s big news. The Supreme Court ruled unanimously that Donald Trump can stay on Colorado’s primary ballot. Voters there are going to the polls today. Last December, Colorado’s Supreme Court ruled that Trump could be disqualified from the ballot based on his actions on January 6th and the 14th amendment of the US Constitution, which says that anyone who committed an insurrection is barred from public office. Yesterday’s decision from the US Supreme Court put him back on the ballot in Colorado. It also means he’s back on the ballots in Maine and Illinois, where state officials had also booted him from the primary elections. Here’s Trump speaking from Mar-a-Lago right after the ruling was announced. 

[clip of Donald Trump] The voters can take the person out of the race very quickly, but a court shouldn’t be doing that. And the Supreme Court saw that very well. 

Tre’vell Anderson: Ugh. Fine. Okay Supreme Court. 

Josie Duffy Rice: Why do I feel like this man has the most basic understanding of how the government works? 

Tre’vell Anderson: [laugh] Because he does. 

Josie Duffy Rice: He just seems to be winging it every time he talks. The president of the organization that helped bring the original Colorado lawsuit spoke out as well. Noah Bookbinder with Citizens for Responsibility and Ethics posted on Twitter that the Supreme Court, quote, “failed to meet the moment, but it is now clear that Trump led the January 6th insurrection, and it will be up to the American people to ensure accountability.” 

Tre’vell Anderson: So, as I understand it, the Supreme Court decision was also a little complicated, even though it was unanimous. How so? 

Josie Duffy Rice: Definitely. So five justices in the ruling, all from the conservative wing of the court, argued that states can bar state candidates and that Congress can bar federal candidates. So they said Colorado and the courts in general don’t have the authority to apply the 14th amendment in Trump’s case. Congress basically has to do that. So to better understand that reasoning, I spoke earlier with one of our favorite court watchers, Leah Litman, co-host of Crooked’s Strict Scrutiny and a professor at the University of Michigan Law School. 

Leah Litman: So it’s a big deal because of course, it’s pretty difficult to get Congress to disqualify federal officeholders. You know, we are in this situation in part because the Senate failed to convict Donald Trump for his role in January 6th immediately after. And so what the court did is it made it much harder to enforce section three, the prohibition on insurrectionists holding office. And how much harder? It’s a little unclear, because the court’s per curiam opinion is kind of chaotic. So it says, as you note, Congress has to have a role in disqualifying federal office holders. But it’s not clear whether the court meant to say, and that can only happen via legislation. And if that’s the case, then it’s even harder to disqualify federal office holders, because then Congress couldn’t expel members or do things by a simple majority as opposed to a filibuster proof number in the Senate. And so it’s a little bit hard to know exactly how far their opinion goes. 

Josie Duffy Rice: Meanwhile, the court’s three liberal justices, as well as Amy Coney Barrett, basically said, we agree that states can’t bar presidential candidates from the ballot, but we would not have taken it this far. We would not have made such a sweeping ruling. Why do you think that the liberal justices did not want to make this ruling as broad? 

Leah Litman: Part of it is, as you were just noting, the possible implications, potentially calling into question Congress’s ability to expel members, remove members, not seat members and whatnot. That’s a problem. I think the majority’s rationale is also just unpersuasive on its own terms. There are examples where Congress has disqualified members without formally passing legislation. So that seems to go against the majority’s interpretation. So does, I don’t know, like the basic history of reconstruction um and the idea–

Josie Duffy Rice: Right. 

Leah Litman: You know, that Congress actually did want this provision meaningfully enforced. That seems a little bit incongruous with the majorities. 

Josie Duffy Rice: Congress already told you. 

Leah Litman: Right. Exactly, exactly. So, yeah, like the general lack of persuasiveness coupled with the troubling, far reaching implications. 

Josie Duffy Rice: So aside from Trump, there are other January 6th rioters who went to prison and then said that they want to run for Congress, like Jacob Chansley, aka the QAnon shaman, or Derrick Evans, the former West Virginia state lawmaker. They went to prison for taking part in the insurrection, and now they want to be congressmen themselves. So what does this ruling mean for them? Like, does it also give them the green light to run for federal office unless Congress bans them, what happens next? 

Leah Litman: I mean, potentially, it definitely doesn’t allow states to refuse to allow them on the ballot, as to whether it potentially allows a majority of the next Congress to refuse to seat them, if the next Congress determines they are insurrectionists. That is unclear. That’s part of what makes the reasoning in the per curiam opinion concerning and chaotic. One of the possible implications that the Democratic appointees raised is whether the majority’s opinion actually precludes criminal enforcement proceedings against insurrectionists, and using that as a basis to disqualify them absent congressional authorization specifically doing so. So we don’t really know, but at a minimum, right. It makes it easier for them to get on the ballot and makes it potentially harder for Congress to stop them actually serving in Congress. 

Josie Duffy Rice: To your point, like Congress is incredibly divided, as we know. So what is your expectation that Congress might move to bar Trump off the ballot? What is your expectation that the Republicans will weaponize the 14th amendment against future Democratic candidates? It both feels like this is ripe for abuse and basically impossible to actually be effective. 

Leah Litman: On the first question on Trump in particular, I think the odds that Congress was going to refuse to certify votes for Donald Trump was nonexistent. Um. You know, this would be done by the current House Republicans in Congress. I think even if the Democrats, like, won a narrow majority in the House, the Democrats are institutionalist. They are afraid of their own shadow. There’s just no way that a majority of the caucus would actually refuse to count votes and certify votes for Donald Trump I don’t think. Whether this emboldens Republicans weaponizing the 14th amendment against Democrats. You know, this opinion potentially makes it harder for them to do so at the state level. But you can imagine a Republican controlled Congress potentially saying, we think Joe Biden, right, gave aid to the enemy because he allegedly unfroze assets to Iran, which was a hypothetical that Sam Alito basically put out during the oral argument in this case. So I don’t think that’s beyond the realm of possibility. But, you know, whether it happens, hard to say. 

Josie Duffy Rice: So despite the outcome of this case, there are a number of other lawsuits where Trump’s eligibility for office could be complicated, thrown into question. Can you give us an update on at least one of those? Next month the Supreme Court hears arguments on whether he’s immune from criminal prosecution for trying to overturn the 2020 election. So what should our listeners know about that and what should they watch for? 

Leah Litman: I think the most important thing is when the Supreme Court actually releases an opinion in that case, because that will determine whether the trial proceedings can actually get off the ground and whether a trial could happen before the election. I don’t think anyone thinks that a majority of the justices are going to say Trump is entirely immune from criminal prosecution for the events related to January 6th. Um the arguments are too outlandish, right? Even for this court, which is really saying something. But the big, big question is whether they are going to act with the kind of dispatch that they did in this case, ensuring a decision before Super Tuesday and ensure a decision, right, would happen at a sufficient speed, where the district court could actually get a trial off the ground and running before the presidential election in November. 

Josie Duffy Rice: And that is my chat earlier with Strict Scrutiny’s Leah Litman. And if you don’t already subscribe to their pod, we’ve got a link to it in our show notes. 

Tre’vell Anderson: Thanks for that, Josie. Turning now to Super Tuesday, which is today. Voters in 16 states and American Samoa are heading to the polls, and one of the states we’re keeping a close eye on is California, where congressional races could determine which party will take control of Congress. Now, California is a solidly Democratic state. A Republican presidential candidate hasn’t won it since the 1980s, and Democrats occupy every statewide office, with Democratic voters outnumbering Republicans two to one. But there are some swing districts in the state which could hold the keys to control of the House, where Republicans outnumber Democrats by just six people. To break down the stakes, I spoke with Marisa Lagos. She’s a politics reporter over at the Bay area public radio station KQED. I started off by asking her how these California races got so competitive in the first place. 

Marisa Lagos I would say dating back the last like four or five cycles, there’s just been a handful in Orange County, in the Central Valley, Inland Empire, um and some of them have shifted. You know, as both the populations have changed and of course redistricting happened. So it is a rare occurrence where a state where we have zero power, ostensibly in like the presidential election, because we just always send a Democrat, the balance of Congress could actually hang in California this November. 

Tre’vell Anderson: So we can’t go over all of the races. 

Marisa Lagos No. We don’t want to. 

Tre’vell Anderson: We don’t want to at all. But I want to start with the house. Can you tell us about the two House races that you’re really interested in ahead of California congressional primaries?

Marisa Lagos So let’s start off in Orange County. Katie Porter is running for U.S. Senate. She’s held this seat near UC Irvine for a couple of cycles, and it’s been very hard fought. So she’s obviously running for Senate. Can’t run for that seat again. So we have a state senator, Dave Min, who is running for that. He’s actually gotten Porter’s endorsement. He challenged her when she first ran for the seat in 2018. And then you have a Democratic attorney, Joanna Weiss, um who is kind of a political neophyte, has played in some politics before but has never run for office before. You know, we see them really battling it out because Scott Baugh, the former GOP Orange County chair, I think is kind of expected to make this runoff. He gave Porter a really hard run for her money a few years ago. The other congressional seat where you have, like a similar dynamic, two Democrats versus one Republican who is looking pretty guaranteed to make a spot in the runoff. This is the 22nd district. It’s in the Central Valley. So where a lot of, you know, the nation’s food is grown and you have Rudy Salas, a former assemblyman, Democrat challenging Republican David Valadao, but also challenging him is a state senator, younger woman, 35 for politics. That’s like very young, right? Um. Her name’s Melissa Hurtado and she is running this race despite a lot of, you know, national and statewide Democrats really thinking that she should bow out and kind of clear the way for Salas. She’s refused to. And I think that that’s a seat where we’re going to have to see, you know, does Salas, can he pull it out? Does he come out a little weakened? This is a big target of national Democrats, because Valadeo was one of only two Republicans who voted for impeaching Donald Trump in the wake of January 6th. 

Tre’vell Anderson: Gotcha. Now, turning to the Senate race. There is an open seat because of the passing of Senator Dianne Feinstein last fall. What are the tea leaves that you’re reading in that case? 

Marisa Lagos Yeah. So we should say in addition to the redistricting changes that happened, we went to what’s called an open primary, a top two primary about 15 years ago as well. And that says that the top two vote getters in a contest like this move on. So it’s not a guaranteed matchup between a Republican and Democrat. So that’s given an opening. Adam Schiff is running for that seat, congressman, you might recall him from the impeachment hearing in 2019 of President Trump. We have Katie Porter, whose seat I just mentioned in Orange County. She’s a Elizabeth Warren protege, kind of run a more populist, consumer focused campaign. Oakland, really legendary Congresswoman Barbara Lee, who took the sole vote against authorizing force after 9/11 for Iraq and Afghanistan. So for a long time like that was the race. And then in the fall, we had this former Dodgers first baseman, Steve Garvey jump in as a Republican. And it really has shaken this up. I mean, Republicans only have like a quarter or a little less of the electorate. But if the Democrats are splitting the whole vote, you know, among the other Democratic and more liberal voters, he could squeak through. So right now, it really looks like Katie Porter is fighting for her political future. Adam Schiff has led in most polls. And so, you know, you have this question as to whether Porter could pull it out and really leap ahead of Garvey. And the challenge for her is like, we’re just seeing a really bizarre electorate. If the returns coming in so far indicate anything. I mean, we don’t know how people have voted, but we know who has voted. And it’s been overwhelmingly, you know, more Republican, whiter and older than the overall electorate is in California. And that’s really going to be difficult for someone like Porter or Lee, who tend to attract younger or more progressive types of voters than Adam Schiff, who I would say is sort of running as an establishment Democrat, you know, with the backing of people like Nancy Pelosi and a lot of other members of Congress. 

Tre’vell Anderson: So what would you say should we be watching for in the results from today’s primary to understand, you know, how strong a Democratic showing could be come November? 

Marisa Lagos We’re going to want to see, yeah, what turnout was like and who voted just broadly. And then I think, yeah, this Senate race is going to be a really good indication. Like can Garvey pull out a second or even first place finish? Can he consolidate that vote? If so, that’d be huge news for Adam Schiff. Probably a pretty easy run in this blue state in November. I think Democrats are going to be under a lot of pressure to really get out the vote, excite voters, make sure that they can, you know, have potentially a more friendly electorate than what it’s shaping up to be this year. 

Tre’vell Anderson: That was KQED politics reporter Marisa Lagos. If you’re wondering how you can help the Democrats pull through this November, we shouldn’t have to tell you twice. Head to VoteSaveAmerica.com to learn more. That’s 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: The Supreme Court temporarily blocked Texas from implementing its harsh new immigration law yesterday. To refresh your memory, Texas’s law is called Senate Bill four, and it would have allowed state officers to arrest people suspected of crossing the border illegally. The state also would have been authorized to deport undocumented individuals. The Supreme Court acted at the behest of the Justice Department, which argued that the law would disrupt, quote, “the status quo that has existed between the United States and the states in the context of immigration for almost 150 years.” Had the court not intervened, the law would have gone into effect this weekend. SB four is now on hold until at least March 13th. 

Tre’vell Anderson: Former U.S. airman Jack Teixeira pleaded guilty in federal court yesterday to leaking national defense secrets. It was an episode that shook the intelligence world, and here’s how it played out. Back in 2022, Teixeira obtained classified documents related to troop movements in Ukraine and supplies sent to them by U.S. companies. Then he posted that info to a group on discord where they eventually spread. Prosecutors didn’t say much about his motive, but they painted Teixeira as someone who wanted to show off to his friends and to brag about breaking the rules. As part of a plea deal, Teixeira pleaded guilty to six counts of violating the Espionage Act, and in return, the prosecutors said they won’t charge him with additional counts. He faces up to 16 years in prison and will be sentenced in September. 

Josie Duffy Rice: Someone is finally mixing things up in the family planning aisle of your local pharmacy. The first oral birth control pill available without a prescription, Opill will hit stores this month. The Food and Drug Administration approved Opill for over-the-counter use last year. When taken as directed, it can be up to 98% effective at preventing pregnancy based on clinical trials of the drug, that makes it significantly more effective than condoms. At an FDA advisory committee meeting last year, experts noted that an over-the-counter pill like Opill could appeal to teens who face barriers in obtaining a prescription. 

Tre’vell Anderson: And staying on the topic of reproductive choice. French lawmakers took the final step to overwhelmingly approve a bill yesterday that makes abortion a constitutional right. As we noted last week when it was moving through Parliament. They were spurred into action by our conservative lawmakers, who have been successful in radically restricting abortion access in many parts of the United States. It’s tragic, but true. Quote unquote, “american influence” means passing laws so draconian that other countries change their most foundational documents out of fear that what’s happening to us could happen to them. Shout out to the French. But I wish better for us here.

Josie Duffy Rice: Truly. The billowing smoke stacks at the Donald Trump misconduct factory released another toxic byproduct. Former Trump Organization finance chief Allen Weisselberg pleaded guilty to felony perjury in Manhattan yesterday. Weisselberg was accused by Manhattan District Attorney Alvin Bragg of lying under oath during a Donald Trump tax fraud case, the same case that ended in an over $450 million dollar penalty for the former president. What’s notable here is that just last year, Weisselberg served 100 days at Rikers Island for Trump related tax crimes. In pleading guilty yesterday, he agreed to another five month sentence. Now, he might have gotten out of it by implicating the former president, but he is extremely loyal and he has a financial incentive to be loyal. The two million dollar severance package Weisselberg got from Trump’s company last year blocks him from cooperating with any law enforcement investigation against Trump, of course, unless he is required by law to do so. Look, you hitched your horse to this wagon, what’s the saying? [laughter] This man first of all, we all know this man is not going to pay you. 

Tre’vell Anderson: Listen, he is on a long list of people who Trump now owes and– 

Josie Duffy Rice: And he’s at the bottom. 

Tre’vell Anderson: Right. 

Josie Duffy Rice: At the bottom [?]. 

Tre’vell Anderson: At the very bottom. 

Josie Duffy Rice: That man is not about to pay you. Use your brain. And those are the headlines. 

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Tre’vell Anderson: That is all for today. If you like the show, make sure you subscribe. Leave a review. Don’t do jail time for Trump and tell your friends to listen. 

Josie Duffy Rice: And if you are into reading and not just the French constitution like me, What a Day is also a nightly newsletter, so check it out and subscribe at Crooked.com/subscribe! I’m Josie Duffy Rice. 

Tre’vell Anderson: I’m Tre’vell Anderson:

[spoken together] And eat fries for Mother Nature.

Josie Duffy Rice: All these years people have been telling me my diet is childish. I need to grow up and eat adult food. Well, I’m saving the earth. 

Tre’vell Anderson: [laughing] And there’s nothing more adult than that Josie. 

Josie Duffy Rice:  Saving the earth is so adult. We are saints is what I’m trying to say. [laughter]

Tre’vell Anderson: Absolutely. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producers are Raven Yamamoto and Natalie Bettendorf, with production help today from Jon Millstein, Greg Walters, and Julia Claire. Our showrunner is Leo Duran and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. 

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