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, that aired on Feb. 11, 2024.
MARGARET BRENNAN: For more on the legal cases 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 has been a really busy week on the presidential legal front. But it- it started with a really important decision from the D.C. circuit that a former president does not have immunity from criminal prosecution. Donald Trump says he plans to appeal this to the Supreme Court of the United States. Do you expect them to take this case up?
DAVID BECKER: Well, I think it’s an almost certainty that he will appeal. The deadline is tomorrow, is Monday. And then I think the Supreme Court is unlikely to take this up. It is a very strong opinion. These are three judges on the D.C. Circuit, often thought of as the second highest court in the land. They were appointed by two different presidents of two different parties. And it’s a per curiam decision, meaning they’re speaking with one voice unanimously, and they very clearly struck down this idea, and it’s a somewhat extreme position, that a president of the United States has blanket, comprehensive immunity for any criminal acts they might have done. And it’s a very, very strong opinion that I think, um, a- a large majority of the Supreme Court is gonna find compelling.
MARGARET BRENNAN: Which will be significant–
DAVID BECKER: Ye- yes.
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: Well, first of all, they address that in the 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 particular president, but the executive branch and the public have a right to expect accountability from the president. But then even more so it- it kind of indicates- indicates a- a lack of understanding about how the justice system works, particularly in the criminal context. In all of these cases that Trump is facing, whether they’re federal like in Florida or in D.C., or whether they’re state based like in New York and in- in Georgia, these were grand juries that were convened. Prosecutors had to present evidence before a grand jury of citizens, and they returned these indictments in each of these cases. And then even after that, the prosecutors face a very heavy burden beyond a reasonable doubt of proving to a jury of his peers that he committed these acts. Can you imagine how prosecutors have- have a weight on them when that happens? This is an independent investigation. There is no interference from- from the political class on these kinds of things, and they’re gonna end up having to prove their case before a jury. And you can imagine what would happen if a jury exonerates president Trump in any of these cases and how that might be a political windfall for him.
MARGARET BRENNAN: You’ve just done a very good job of explaining the– how the system works. But for those who are only hearing the political slogans, what they see is that Joe Biden is not being prosecuted by the Justice Department for classified- mishandling classified information. Mike Pence wasn’t either, but Donald Trump is, specifically because he also went to efforts to not hand over those documents–
DAVID BECKER: –That’s right–
MARGARET BRENNAN: — to law enforcement when they asked for them to be returned. For those who see this as unequal justice, like, how do you respond?
DAVID BECKER: Well, I think this week was a really good indication of how the Justice Department acts as independently as it does. We heard earlier that clearly the Biden administration is not happy with the release of the Hur report on- on the investigation. And if they really had as much power over the Justice Department as former president Trump alleges, that wouldn’t have been released, it clearly was. Also, I think, ironically, we have to note that one of the four charges against former president Trump in D.C. is interference with the Justice Department. He was alleged to have interfered with the judge- Justice Department, try to get them to investigate an election where everyone agreed there was no fraud, and the- and it was legitimate. And so I think it, again, represents kind of the 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 both President Biden and Former Vice President Pence were treated very similarly. And former President Trump was treated differently mainly because he withheld those documents, even when that- he was requested to, and he did not open his doors to the investigators to take a look at them.
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: I think that’s likely to be the case and it could even be unanimous. I think- what we saw, it was- it was such an illuminating argument. The nine justices were really having an- a discussion amongst themselves and what they all seemed to be troubled by was the idea that a single state could make a ruling on this, even after an evidentiary hearing, as Colorado had. And that they could basically set the qualifications of a president, just one state for all 50, or that multiple states could come up with different ideas of qualifications. And for the presidency in particular, it’s the- it’s the most unusual election we have. It’s the only one that has electors and electoral votes. So, I think it’s likely the court’s going to rule that he can remain on the ballot.
MARGARET BRENNAN: All right, David Becker, always great to have you.
DAVID BECKER: Thanks, Margaret.
MARGARET BRENNAN: We’ll be right back.