Disqualified in Colorado 30:57

Hello and welcome back to a breaking news episode of Prosecuting Donald Trump. It is December 20th. And Mary, didn't I just talk to you? Just two days ago. And you predicted we would see each other again before the end of the year. And you were right.

Yeah, so that was a really, I mean, it took such skill to predict that there would be new news with respect to Donald Trump. So I can hardly take credit for this one. I'm not sure I thought we'd be back in two days, but I agreed with you we would be back before the end of the year. And here we are, two days later. We're that good. We're that good. Maybe you'll be back two or three more times before the end of the year. Who knows?

Oh, God. Okay. So no holidays. It's just like the Trump team and the Jack Smith team that are super busy. Boy, no holidays for a lot of people. The law clerks up the Supreme Court. But let's talk about why that is. So this couldn't be a more solemn decision.

of enormous magnitude. Mary, we have like a quick agenda to try and get people through this. Andrew, I'm just going to interrupt to say we're here on this emergency episode because of course, last night, the Colorado Supreme Court issued a ruling saying that Donald Trump will not be allowed to be on the ballot in Colorado for the presidential primary. However, it did stay its decision to give him time to go to the Supreme Court. We'll come back to that. But just wanted to get out there why we're here, even though for us, it's so. Yeah.

It's so funny. You're totally right to like, yeah, we forgot the headline here. Okay. So jumping in, I'm going to read for people.

the constitutional provision that's at issue here. It is true that this is something that's new to a lot of people, and it's new because we've never been in this situation because we've never had a former president who potentially has violated this provision of the Constitution. So jumping in, I'm going to go

go over the language of Section 3 of the 14th Amendment. It was put in place after the Civil War to make sure that people who participated in that rebellion or insurrection, having previously taken an oath of office to uphold the Constitution, would not be eligible to run for certain

offices. And there's an exception that Congress with a certain vote can alleviate that bar. But let me redo that language. And then, Mary, you're going to give us a sort of

Yeah. Or a nutshell for all those who just go with common language. Who don't speak French. Yeah. Common English. Right. Okay. So that reminds me of a friend of mine when I said, I think people think of me as an elitist snob. And my friend turned to me and said, you know what? And you hide it so well. Which...

Anyway. Well, I don't think you're a latest snob for what it's worth. But when you use the French. You're biased. When you use the French, I got to tell you. I mean, you can use French when you're talking about French food. Then I think that's a brilliant idea. Okay. So I'm going to read in English the Section 3 of the 14th Amendment. It's a little long and complicated, but it's really important. So here we go. No person shall be a senator or

or representative in Congress, or elector of president and vice president, or, this is now the key language, or hold any office, civil or military,

under the United States or under any state who, having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States,

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,

But Congress may, by a vote of two-thirds of each House, remove such disability. So that's the provision. It was very much geared to what had happened in the Civil War, just stepping back historically, big picture. We are very much in that situation now. I mean, it's remarkable that we're having this discussion, if you think about it, but

Mary, you and I are lawyers, and as we know, a provision like this in the Constitution raises many, many legal issues. In the law, when you go to law school, you learn nothing simple. So you can take a very simple statement like due process of law, and it becomes very complicated. So with that as the introduction,

Mary, could you give us a sense of the nutshell of the kinds of issues that the court had to grapple with? Right. And remember as well that this is the Colorado Supreme Court hearing an appeal from a decision of the trial court in Colorado that had actually issued also a lengthy ruling that we discussed a few weeks ago. And, you know, many other things. His speech wasn't protected by the First Amendment, etc., etc., etc.

but actually determining that the office of the presidency was not an office under that language you just read, and that being a president is not being an officer under the United States based on that language you just read. So the trial judge had determined that Section 3 of the 14th Amendment did not apply to disqualify him after making all the other findings that he did, in fact, engage in insurrection. So this went up on appeal to the Colorado Supreme Court, and the Colorado Supreme Court issued its opinion yesterday. And it

Has basically eight different legal conclusions in this opinion. And that's important because when Donald Trump goes to the Supreme Court, as he says he's going to, he's going to make arguments that the Colorado Supreme Court is wrong. He's probably going to argue on every single one of those eight points.

Now, one of them, I think, the kitchen sink. Now, one of those, I think, is not really renewable by the Supreme Court, but the others are. And that means the Supreme Court's going to be having to grapple with many, many different legal issues. But here's the nutshell of the legal issues. First, the Colorado Supreme Court held that under Colorado's own law, its election code that applies in Colorado, that the plaintiffs here, Republican and

independent voters could bring a cause of action, a lawsuit under Colorado law to essentially direct the secretary of state to keep Mr. Trump off the ballot. So this was a pure state law issue that Colorado's election code makes it a wrongful act for somebody who is disqualified or underqualified

unqualified, let's say, unqualified to be president. It's a wrongful act to include an unqualified person on the ballot. And we can get into that. But think about things like that would mean you wouldn't put somebody on the ballot who was not 35 years old for president because you've got to be 35 years old. So you wouldn't put them on the ballot. All right. So first they made the state law holding. Mary, can I ask you a question about that? Yes. When your example of under 35, is

Is that because the state law sort of links back up to the federal requirement, or is there an independent and separate ground under the

Colorado statutes or constitution? Well, under Colorado statute, the secretary of state is to put people on a ballot who meet qualifications, of course, under whatever state laws might be applicable, but also the qualifications required by the U.S. Constitution, right? And so, yes, that includes things like natural born citizenship, age of 35. And so those are things I would say are objective facts, right? Your birth certificate

Yeah.

So that's thing one. There's eight of these, right? Second, Congress does not have to pass implementing legislation in order for Section 3's disqualification provision to be effective. In other words, here we're talking about this challenge being directly under the 14th Amendment, Section 3. Congress hasn't passed a law that says when you challenge this, here are the things you have to

prove, and here's the burden of proof. They haven't done any of that, right? This is just directly under the Constitution, and the Colorado Supreme Court said you don't need implementing legislation. That's their second holding. Third, they held that they are not precluded by something called the political question doctrine from judicially reviewing

Trump's eligibility to be on the ballot under Section 3 of the 14th Amendment. So some had argued that that's a political question that a court can't review for a variety of reasons that are very complicated that we could get into, including things like no judicially manageable standards to apply to it.

That was their third holding. Their fourth is that, and this goes back to the point about what is an office and what is an officer. They rejected the lower court's holding that office and officer under Section 3 of the 14th Amendment does not include the president's. They said that's wrong as a matter of the text of the Constitution, its original meaning, those who proposed it back

right after the Civil War, what they intended. It was always intended, and it textually applies to the office of the presidency. So that was their fourth legal conclusion. Their fifth conclusion was that the district court did not abuse its discretion by admitting parts of the House Select Committee's January 6th report into evidence.

And this is something we've not talked about in the past, but one of the things the court did, she had a five-day evidentiary hearing. She heard from witnesses, live testimony, but she also admitted into evidence and considered, and this is in her opinion, some of the conclusions of the House Select Committee under the rules of evidence. And they said that was not an abuse of discretion.

Six, they affirmed that the lower court, the district court, was correct in concluding that the events at the U.S. Capitol on January 6, 2021, were in fact an insurrection because that term is not defined in Section 3 of the 14th Amendment, as you just read it. They determined based on history of that term, what it is, what it means, that it was an insurrection. Seventh, that

The district court also did not err in concluding that President Trump engaged in that insurrection through his personal actions. And here they also, I will say, they're saying the district court did not err, but they reviewed independently all of the district court judge's conclusions. And they themselves said engaging in includes things like inciting and because of

And they did a very, very lengthy, and I'm sure we're going to talk a little bit about this, recounting of everything that the former president had done since way before the election, August 2020 until after the election and leading up to January 6th, and that his behavior was direct participation in the insurrection. And finally, their final legal conclusion was that Trump's speech inciting the crowd that breached the U.S. Capitol on January 6th was not protected by the First Amendment.

So it's a real sort of blockbuster opinion of many, many legal conclusions that they have supported through the facts and evidence that were elicited during that five-day hearing. Okay. I'm impressed. I was going to give you just a couple of things I thought that sort of stood out to me, and maybe you could do the same, and then we'll get to what's next. Sure.

I had so many different thoughts, but I wanted to just focus just on the factual component to sort of step back, because regardless of what happens in the Supreme Court or other states, you now have the Colorado Supreme Court. And it is a four to three decision, but there really wasn't anybody who dissented.

from the factual findings, there wasn't anyone who said, oh, by the way, I don't think this is insurrection. I don't think that the former president did this. There's no dissent on that. There's procedural issues. And I don't mean to say procedural issues in a demeaning way. I'm a lawyer. Procedural issues are important. Due process is important. Those are the kinds of issues that dissent focused on. But the Colorado Supreme Court in the majority decision, and again, without

dissent on this, found that the former president had the specific intent to incite

incite imminent unlawful action. Those are quotes. Specific intent to incite unlawful action. That is being said about the former president of the United States. That is in footnote 21. As you said, they did an independent fact review of what happened in the district court. They didn't just say we're not finding, you know, that it's not just an abuse of discretion. They did their own assessment of it. I found that

Remarkable. I also found an irony, again, big picture in that Donald Trump quite famously engaged in the racist trope about President Obama, about birtherism. Not being qualified. Exactly. Going to the exact issue of because the Constitution also disqualifies people who are not naturally born citizens. So it's not like this idea is

new to Donald Trump, who tried to raise the, in my view, racist specter with respect to ultimately the first Black president to say he's disqualified the so-called birtherism. The irony- Which was, of course, false. So, I mean, he's been telling falsehoods for his whole life, I think.

Yes, but that's almost like ground zero for, I mean, he's been lying about lots of other things, but the ground zero in terms of political lies and attack on and signaled so much of what we've seen in terms of isms of racism, sexism, xenophobia, anti-Semitism. I mean, just a whole variety, anti-Muslim talk. The irony that you...

you have this decision coming out. And as I said, it's so new to people and it always seems to me I'm sort of fighting the, well, this can't be right because it hasn't happened before instinct because the reason it hasn't is because nobody in their right mind would engage in insurrection, let alone having taken an oath of office, the kind of oath of office, Mary, you and I have taken. And

and take so seriously when it's given, when you raise your right hand and swear to uphold the Constitution, the laws of the United States, and your obligation to both your government job, but to the people you represent, so that there is a solemnity to this decision and to what it means and the irony of how

candidate Trump was trying to wield this falsely against then-candidate Obama just was hard to escape. So those are my two big picture thoughts before we sort of get to the Supreme Court issues. Yeah, no, I agree wholeheartedly with that. And to your point about the dissent, there were three dissents. But like you say, they don't really quarrel with these sort of

fundamental issues that I think should be important to all Americans going into the 2024 election cycle. Their issues are, again, two of them thought that the election code in Colorado wasn't meant to sort of deal with challenges like this. One of them felt like

The process here was not sufficient for due process to keep someone off a presidential ballot, notwithstanding, again, it was a five-day evidentiary hearing. But those were the issues that they focused on, like you said, not these core principles of did Donald Trump engage?

in an insurrection. And one conclusion I'll read, and then let's move on, is just the majority concluding that the evidence that it had recounted, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection. President Trump's direct and express efforts over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country, were undisputedly overt and

and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion to prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power. So, you know, like you say, these are just

Things we have not seen in our lifetimes. Body blows. I mean, body blows. Yes, body blows. Absolutely. And there's something about seeing that in judicial opinions that gives you some comfort that it's not just you. It's not just in your head, that there's a reality and that there are people in responsible positions of power who aren't going to flinch from what is going on and the reality of what's going on.

And we've seen judge after judge, right? Court after court write these kinds of words, right? We just were talking about Judge Pryor's decision in the 11th Circuit. And just so everyone understands, this is not a Republican-Democrat issue. Chief Judge Pryor is an extremely conservative jurist who was scathing in his 11th Circuit decision.

More prosecuting Donald Trump disqualified in Colorado in just a moment.

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So let's just focus now on the Supreme Court. So you had mentioned, Mary, the stay issue. The majority opinion, just to be clear, they stayed their decision in two important ways. One, they said, we're staying it no matter what until January 4th.

Why that date? Because on January 5th, the Colorado secretary of state has to decide who's on the ballot so that they said it stayed no matter what until the 4th. And there's the key part. If Donald Trump seeks review in the Supreme Court, the stay is continued beyond that until

unless and until essentially the Supreme Court decides what to do and hands it back. Yeah. Either doesn't accept the case for cert, and we talked about cert two days ago, or accepts it and eventually rules. And we know Donald Trump's going to file a cert petition. Yes. And he said he's going to, and he should. And by the way, that's his right. That's right. So he will file that, which means that the state will be in effect-

Unless the Supreme Court obviously decides it before the fourth, but they won't do. And so the Supreme Court's now going to have before it this petition for cert, as well as the presidential immunity for cert. So both of these are barreling forward. And it means that the Supreme Court can decide what to do with the Colorado petition.

which has to be sort of served out on the 5th. But this seems like he will be on the ballot for the 5th. But now we go to the merits of what will happen in the Supreme Court. And this is where one of the things I took away. Before we go to that, can I just say one other thing? You know, part of the date, this is a Colorado statutory requirement that

the 5th of January, the secretary of state has to certify the names that are going to be on the ballot. And then that triggers the printing of the ballots and things like January 20th ballots get mailed to the military overseas. January 20th, people can start requesting absentee ballots, right? So that's the purpose of that January 5th, because it's 60 days before Colorado's primary on March the 5th. So things have to happen. Now, even though his name will be, I mean,

you know, I would say 99.99 percent, his name is going to be on that ballot because this is still going to be stayed as of January 5th. If something were to happen before, if the Supreme Court were to issue a ruling before March 4th, and I think that would be actually also really, really fast for the Supreme Court. But if they were, it's not like new ballots could get

printed, and certainly some people would already have sent in their absentee ballots probably. But I've been to a polling place before where there's a big sign on the wall that says such and such candidate has withdrawn, but it was after we printed the ballots. And so the name still appears. And so it's not as though

if the Supreme Court ruled that he's disqualified, there's nothing could be done. But it would really throw things into confusion, right? Because some people might have already voted, et cetera. And also, it's worth remembering, this is the ballot with respect to the Republican nomination. We're talking about the primary, not the general. That's right. And so the issue of what the Supreme Court might do, that's where

what I took from the opinion and what came out loud and clear, Mary, from what you were saying in your summary or nutshell of the issues, and I also took from reading the dissents, is there a lot of issues that the Supreme Court could rule on that phrase might be off-ramps, ways that they could end up with

five or more justices saying that we're going to reverse the Colorado Supreme Court. Now, there's some issues in terms of their limited jurisdiction to review pure state law issues. Obviously, in Bush v. Gore, they managed to figure out a way to do that. That's right. And

There are a lot of procedural issues, whether it's due process, whether it's whether he's an officer or the presidency is an office. What's an insurrection under Section 3? Those are all federal constitutional issues that they can review, right? Exactly. I don't think they'll go off on sufficiency of the evidence, but they could go on the procedures that were afforded Donald Trump. So I'm not saying I agree with any or all of that. I just think there are so many issues.

ways that this could be reversed. And it obviously is an issue of

for almost all of this first impression because we've never had a president who engaged in this kind of conduct who's running for office. And that is why it should be heard by the Supreme Court, right? I mean, this is an issue of such monumental importance to American democracy. You know, what does this mean? How should it be applied? This needs to be settled by the Supreme Court. They're the ones with the authority that would

be respected by people in America, whether we agree or disagree with their ultimate conclusions, you know, that's what their job is to do. So it's appropriate for this to be heard. I hope they will quickly accept the petition and set an expedited briefing schedule and hear this. Don't you think that's what will happen? I do think that's what will happen. Yeah. And so they are going to be extremely busy because today, the day we were recording, Wednesday, sometime today before 4 p.m. Eastern,

Mr. Trump also has to file his opposition to Jack Smith's petition for cert in the presidential immunity case. So both of these issues are going to make the justices, law clerks and their justices themselves have a very, very busy holiday season. Mary, one of the things that you mentioned about the fact that they're going to seek cert

that is review of the Colorado case, but they're also putting their opposition in with respect to Jack Smith seeking review of presidential immunity, is those two filings are going to be saying the opposite thing. The Jack Smith one is going to say, "Slow it down,

I need as much time as possible. And the Colorado filing is going to be speeded up. I need you to reverse it so I'm on the ballot. It's going to be whiplash. You're right. It's like, you know, which is basically heads I win tells you lose. You know, that's what defendants do. Exactly. That's right. Right.

Right, but it is the irony. So, Mary, what is the implication? We have this Colorado ruling. All of this is going on in a variety of different states, a lot of them so-called battleground states. What are the implications of the Colorado decision and this short-term

surely there will be this Supreme Court review. What's the implication for the other states? Yeah, so, you know, not much in terms of legally. This is a Colorado Supreme Court opinion. It is at best persuasive authority in other states, but it's not binding on any other state. And remember, the whole entry point to all

of the legal conclusions that we talked about at the beginning of the podcast is because the Colorado Supreme Court determined that under Colorado law, it could actually review all these things. Some of the other courts, Michigan and Minnesota, have said,

Under our state law, there's nothing here that is reviewable at this point. In some cases, it's because under state law procedures, the party can decide who they want on the ballot, and there's no review of that under state law. Now, it could be later if Donald Trump was disqualified under Section 3. There's some other way to prevent him from taking office, but those

courts were saying under our state law, there's not a mechanism for us to review this. So Colorado's decision based on Colorado law is going to have really no impact on those other courts. However, if other courts do get to some of the core issues we were talking about, like what's an insurrection and what does it mean to engage in an insurrection and what's protected speech and what's unprotected, you know, that's where I think other judges are

will be looking very closely at what other judges they respect have said about that. And we see judges rely on other judges' rulings on these kind of issues. Not that these kind of issues are common, but they have been since January 6th, right? Lots of judges, particularly in D.C., have had to rule on issues related to January 6th. So it can have that kind of impact. And I think it's also just really important because, as we were just discussing, so many people

have, you know, regardless of procedural issues, which again are important, have agreed with some of the key facts. And I think that's significant. But another question in terms of impact, and maybe this needs to be one of our last questions because this was supposed to be a real short episode and here we are going on and on, but I think it's worth it. I mean, it's like super important stuff. A lot of people have asked, how could Donald Trump be disqualified under

a constitutional provision that talks about insurrection if he has not been charged and convicted criminally of insurrection? So that is a great question. And in fact, one of the dissents raises that, says, shouldn't this require a criminal conviction? And if you go back to the beginning where I read the language from Section 3 of the 14th Amendment,

Like a lot of constitutional provisions, it doesn't answer a lot of questions. It doesn't give you the mechanics and it doesn't say what is an insurrection, as you mentioned. It doesn't say what is rebellion. It doesn't say what is the standard of proof that would need to be implemented.

met by the government doesn't say who decides whether it's the courts or somebody else who's going to make this decision. So it doesn't say that it needs to be a criminal charge and needs to be found by a jury beyond a reasonable doubt. So it's not clear it would need to reach the level of

that kind of heightened standard. Remember, that is the standard for sending someone to jail. Beyond a reasonable doubt. Obviously, this is an important decision as well because it disqualifies someone from running for president and it disqualifies our ability to vote for that person. So you can understand why there might be heightened procedures and standards, but it still may not be that it needs to be

criminal case. And one argument would be, well, if they meant that, they would have said anyone convicted of insurrection or rebellion cannot, and it doesn't say that. So that is one of the many open issues. And one of the things that is useful, obviously, we're all very focused on this in this specific

of Donald Trump, but it is so useful for the court. And I do think the justices will be thinking about this, about setting this standard for the future, that there is an answer to this question. You know, hopefully, you know, God forbid, we should never be in this situation again. But given where we are and what we've experienced in the last, you know, six years, unfortunately, you know, you do need to anticipate it because of what the country is going through. That's right.

Having said all that, Mary, I was going to wish you the happiest holiday and the happiest new year and to our wonderful team here at Prosecuting Donald Trump. But I don't want to jinx it because I don't know if we're going to see each other again before Christmas.

before any of that occurs. Well, I'm going to say yes. We're going to wish everyone a wonderful holiday season, whatever holiday you might celebrate. And we might wish it again in a few days. So you can never wish happy holidays too many times. Mary, it's nice to see you. It's again, when something this major comes out, one of the upsides is it's really always great for me to be able to get your insights on and how to think about this. Same for me.

Take care. Talk soon. If you've got questions, you can leave us a voicemail at 917-342-2934. Maybe we'll play it on the pod. Or you can email us at prosecutingtrumpquestions at NBCUNI.com. Thanks so much for listening. We'll be back next week with much more.

This show is produced by Vicki Virgolina, Jessica Schrecker, and Ivy Green. The audio engineers are Katherine Anderson and Bob Mallory. Our head of audio production is Bryson Barnes. The senior producer for this show is Alicia Conley. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.

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