Below is a written record of a conversation with David Becker, a contributor on election law for CBS and the creator of the Center for Election Innovation and Research. This interview was broadcast on February 11, 2024.
Margaret Brennan: To discuss the legal cases against former President Donald Trump, we have David Becker, CBS News election law contributor and founder of the Center for Election Innovation and Research. David, it’s great to have you here. The past week has been filled with legal activity surrounding the former president. It began with a significant ruling from the D.C. circuit that a former president is not protected from criminal prosecution. Donald Trump has stated that he will appeal this decision to the Supreme Court. Do you anticipate the Supreme Court will hear this case?
David Becker believes that it is highly likely that the defendant will appeal by tomorrow’s deadline, which falls on Monday. However, he does not think that the Supreme Court will agree to hear the case. The decision was made by three judges from the D.C. Circuit, which is considered the second highest court in the country. These judges were appointed by different presidents from different political parties. Their decision, known as a per curiam decision, was made unanimously and clearly rejected the idea that a president is immune from criminal acts. This stance is seen as extreme and the opinion is very strong. Becker believes that a majority of the Supreme Court will find it convincing.
“What will be the significance of this?”
DAVID BECKER: Yes, I understand.
MARGARET BRENNAN: –for- for them even to say that that’s the law of the land here, but Donald Trump has repeatedly argued to his supporters, as you know, everything he says is rigged, but on this, he says, it will hamstring presidents, without total immunity, the “opposing party . . . can extort and blackmail the president by saying “if you don’t give us what we want will indict you for things you did while in office.”” Is there any truth to that?
DAVID BECKER: First and foremost, the D.C. Circuit addresses this issue in their opinion and applied a balancing test. They believed that the executive branch, as a whole and not just one president, has the right to expect accountability. However, it also demonstrates a lack of understanding about how the justice system operates, especially in criminal cases. Trump is facing various cases, whether on a federal level in Florida and D.C., or on a state level in New York and Georgia. In each case, grand juries were convened and prosecutors had to present evidence to them. The grand juries returned indictments in all of these cases. Even after that, prosecutors face a heavy burden of proving beyond a reasonable doubt to a jury of peers that Trump committed the alleged acts. This places a great weight on prosecutors. These are independent investigations with no interference from the political class, and the prosecutors will have to convince a jury of their case. The outcome of these cases could have significant political implications if Trump is exonerated by a jury.
MARGARET BRENNAN: You have effectively clarified the functioning of the system. However, for those who are only exposed to political catchphrases, they may perceive that Joe Biden and Mike Pence were not held accountable by the Justice Department for mishandling classified information. Unlike Pence, Donald Trump is now facing charges due to his deliberate actions to withhold these documents.
David Becker said that is correct.
Margaret Brennan: When law enforcement requested for them to be returned, they complied. How do you address those who view this as unjust treatment?
DAVID BECKER: In my opinion, this past week’s events demonstrate the independent actions of the Justice Department. Despite the Biden administration’s disapproval of the recent release of the Hur report, it was still made public. It is worth noting that one of the charges against former President Trump in D.C. is for meddling in the Justice Department’s affairs by attempting to have them investigate a supposedly fraudulent election, which was later proven to be legitimate. This highlights the dangerous politicization of viewing actions against one’s opposing party as justified, while any actions against one’s own party are deemed unacceptable. Both President Biden and Former Vice President Pence were treated fairly and similarly, while former President Trump faced different treatment due to his failure to cooperate with investigators and refusal to provide requested documents.
MARGARET BRENNAN: And you can read the indictments to see the details of specifically the lengths he went there. But, in the- you were in the courtroom at the Supreme Court this week, as they were debating this case that came out of Colorado in regard to the 14th amendment and keeping Trump off the ballot because of alleged role in insurrection. The impression seems to be that justices will rule against the state of Colorado. Is that what you walked away with?
DAVID BECKER: It is possible that the court will unanimously agree with this conclusion. The discussion among the nine justices during the argument was very enlightening. They seemed to all share concerns about the idea of one state making a decision on presidential qualifications, even after a hearing with evidence, as Colorado did. They also expressed concerns that a single state could determine the qualifications for all 50 states, or that different states could have varying ideas of qualifications. The presidential election is unique in that it involves electors and electoral votes. Therefore, it is probable that the court will allow the candidate to remain on the ballot.
Margaret Brennan: It’s always a pleasure to have you, David Becker.
David Becker expressed gratitude to Margaret.
MARGARET BRENNAN: We will return shortly.