The following is a transcript of an interview with CBS election law contributor David Becker, the founder of the Center for Election Innovation and Research, which aired on 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, the founder of the Center for Election Innovation and Research. David, good to have you here. It’s been a very busy week on the presidential legal front. But it started with a very important decision by the DC Circuit that a former president has no immunity from criminal prosecution. Donald Trump says he plans to appeal this to the United States Supreme Court. Do you expect them to take up this case?
DAVID BECKER: Well, I think it’s almost certain that he will appeal. The deadline is tomorrow, Monday. And then I think it’s unlikely that the Supreme Court will take this up. It’s a very strong opinion. These are three judges from the DC Circuit, often seen as the second highest court in the country. They were appointed by two different presidents of two different parties. And it is a per curiam decision, which means they speak unanimously with one voice, and they have very clearly rejected this idea, and it is a somewhat extreme position, that a president of the United States should have a general, comprehensive has immunity for all criminal acts he commits. might have done. And it’s a very, very strong opinion that I think a large majority of the Supreme Court will find persuasive.
MARGARET BRENNAN: Which will be significant…
DAVID BECKER: Yeah-yeah.
MARGARET BRENNAN: –for– for even saying that that’s the law of the land here, but Donald Trump has repeatedly argued to his supporters that, as you know, everything he says is falsified, but at this point, so he says, that must be the case. If you paralyze presidents, without total immunity, the “opposing party… can extort and blackmail the president by saying, “If you don’t give us what we want, he will sue you for things you did while in office.” on that?
DAVID BECKER: Well, first of all, they address that, in the opinion the DC Circuit does as well, and they applied this balancing test and they really thought that the executive branch as a whole, not any particular president, but the executive power and the The public has the right to expect accountability from the president. But more than that, it somewhat indicates that there is a lack of understanding about how the legal system works, especially in the criminal context. In all of these cases that Trump is facing, whether they are federal like in Florida or in DC, or state based like in New York and in Georgia, these were grand juries that were convened. Prosecutors had to present evidence to a grand jury of citizens, and they returned these indictments in each of these cases. And even after that, prosecutors face a very heavy burden beyond a reasonable doubt to prove to a jury of his peers that he committed these acts. Can you imagine how prosecutors could weigh on them if that happens? This is an independent investigation. There is no interference from the political class in these types of cases, and ultimately they will have to prove their case to a jury. And you can imagine what would happen if a jury acquitted President Trump in any of these cases, and how that could be a political windfall for him.
MARGARET BRENNAN: You just explained very well 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 secret and mishandling of classified information. Mike Pence wasn’t either, but Donald Trump was, especially because he also did his best not to hand over those documents–
DAVID BECKER: –That’s right–
MARGARET BRENNAN: — to the police when they asked for a refund. 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 operates as independently as it does. We’ve heard before that the Biden administration is clearly not happy with the release of the Hur report on the investigation. And if they really had as much power over the Justice Department as former President Trump claims, that would not have been released, that was clearly the case. I also think we should note, ironically, that one of the four charges against former President Trump in DC involves interference with the Justice Department. It was alleged that he had interfered with the Justice Department judge, trying to get them to investigate an election that everyone agreed was not fraudulent and was legitimate. And so I think it represents, again, a kind of politicization of this idea that everything that happens against the other side is good, and everything that happens against our side is bad. But here we see that both President Biden and former Vice President Pence were treated in very similar ways. And former President Trump was treated differently mainly because he withheld those documents, even when asked, and did not open his doors for investigators to view them.
MARGARET BRENNAN: And you can read the charges to see the details of specifically the effort that he went to there. But in the… you were in the Supreme Court courtroom this week as they debated this case coming out of Colorado regarding the 14th Amendment and keeping Trump off the ballot because of his alleged role in the insurrection. The impression seems to be that judges will rule against the state of Colorado. Is that what you walked away with?
DAVID BECKER: I think that will probably be the case and it could even be unanimous. I think – what we saw was it – it was such an insightful argument. The nine justices were really arguing with each other, and what seemed to bother them all was the idea that a single state could rule on this even after an evidentiary hearing, as Colorado had done. And that they could basically determine the qualifications of a president, just one state for all fifty, or multiple states could come up with different ideas about qualifications. And especially for the presidency, it is the most unusual election we have. It is the only one that has voters and electoral votes. So I think it’s likely that the court will rule that he can stay on the ballot.
MARGARET BRENNAN: Okay, David Becker, always great to have you.
DAVID BECKER: Thank you, Margaret.
MARGARET BRENNAN: We’ll be right back.