0:07

Hello and welcome to the

0:09

Political Orphanage, a home

0:12

for plucky misfits and prosecutors.

0:16

I'm your host, Andrew Heaton. Recently,

0:20

the Colorado Supreme Court removed Donald

0:22

Trump from its presidential primary ballot

0:24

on the grounds that he committed

0:26

insurrection on January 6 and is

0:28

therefore constitutionally unable to hold the

0:30

office of the presidency. The

0:32

state of Maine subsequently removed Trump from their

0:34

ballot as well, and at the time of

0:36

recording, other states are considering likewise. February 8,

0:38

the Supreme Court of the United States will

0:41

weigh in and will either force

0:43

Trump back onto those ballots or

0:45

open the doors for other states to remove him. So

0:49

today, we are going to discuss the

0:51

legal side of what's happening. Does

0:54

the Colorado Supreme Court make a

0:56

compelling constitutional case in favor of

0:58

disqualifying Donald Trump from the ballot,

1:01

or is this just Trump derangement

1:03

syndrome using the law as a funhouse mirror

1:05

to remove a scary candidate they want to

1:08

make go away? How is

1:10

the Supreme Court going to rule on this, and

1:12

how does it all play out long-term,

1:14

big picture? That's what

1:16

we're going to discuss today, right

1:18

here on the Political Orphanage.

1:24

My guest today is Anna Gorish, returning

1:26

triumphantly to the program to

1:28

discuss law, and not just law, but

1:31

law that will be coming before the

1:33

Supreme Court and directly influential on American

1:35

courts. We speak of the

1:37

attempts of Colorado, Maine, and a few other states

1:40

to remove Trump from the ballot, which will be

1:42

what we're talking about today. Hello, Anna. Hello,

1:44

Andrew. It's good to be back. Thank you.

1:47

Delighted to have you back. I

1:49

read the Colorado decision in preparation

1:51

for this, and I

1:54

am now more muddled than before I

1:57

started reading it. I had like a really

1:59

hot take. prior to that I'm now

2:01

like, ah, well, now I'm

2:04

like 60-40 on this. So

2:06

I just want you to remove my cognitive dissonance

2:08

over the course of today's conversation.

2:11

That's what I want. You want me to

2:13

help you just be able to justify what you already believe? No,

2:15

no, no. I just... You want to resolve

2:18

your cognitive dissonance? Exactly. What I

2:20

want is for the gray mist invading my brain

2:22

to dissipate and for me to go, ah, this

2:25

is not what I think. That's what I want.

2:27

You realize we're talking about the law, right? Yeah.

2:30

Supreme Court. So I don't know that you'll get

2:32

that kind of clarity, but we'll try. Okay, good.

2:34

All right, excellent, excellent. Okay,

2:37

so what we were talking about

2:39

this prior to the episode starting, we've got good

2:42

different sets of knowledge we're bringing in here.

2:44

Yeah. You're a lot more because

2:46

you're an attorney and I'm not. I did read the court

2:48

case, but you've been focusing on what is the Supreme Court

2:50

going to do. So I read

2:52

the Colorado decision that's what kicked us all off

2:54

of Colorado removing Trump from the ballot, whereas you've

2:56

been focusing on what is the Supreme Court going

2:58

to look at when it gets to them, which

3:00

is scheduled for late February. Yeah, and kind

3:02

of dissecting the different arguments that they're

3:04

going to hear and maybe kind of

3:06

speculating on what we think they'll

3:09

use to decide the case, how

3:11

far they'll go. You

3:13

know, I think that the court is

3:15

probably going to be reluctant to get

3:17

into defining insurrection and determine, like making

3:19

a determination on whether or not Trump

3:22

engaged insurrection and

3:24

there's a couple of ways they can attack

3:26

this question without having to address that element.

3:29

It's interesting. Well, let's do

3:31

this. I want to start out with the Colorado decision because that's

3:33

going to be the basis. Yes. And

3:35

then we'll go from there to the Supreme Court decision.

3:38

One, fun fact about the Colorado decision, they

3:41

quote the Princess Bride in it. I

3:43

did not know that. He was very happy with that.

3:45

I was reading that on a plane flight on the

3:47

way back and I was reading one of the dissenting

3:49

opinions and I don't remember the relevant word, but there

3:51

was some word where he goes like might've

3:53

been insurrection. Insurrection, insurrection

3:56

to quote Inigo

3:58

Montoya from the Princess Bride. I do not think you

4:00

know what that word means. Oh, you did that

4:02

word you keep using. It doesn't mean what you

4:05

think it means or whatever. That bit.

4:07

Yeah. favorite

4:10

judge now. Yeah. Like, this

4:12

is like, I now have a favorite judge in the Colorado

4:14

Supreme Court, which is a guy that wrote that, or maybe

4:16

gal, but I think guy in this instance. So

4:19

the Colorado case, for

4:21

anybody that's unfamiliar with the background of this, a

4:24

group of electors, I think

4:26

that just means voters in this context

4:28

that were independents, independents and

4:30

presumably never Trump or Republicans, filed

4:33

a motion with, or filed

4:36

with the Supreme Court saying, we

4:39

believe that Trump is constitutionally unqualified

4:41

to run for or hold the

4:43

office of presidency because

4:45

he engaged in insurrection against the

4:48

government of the United States, which

4:50

would make him inadmissible according to

4:53

Article 14, Section 3 of the US Constitution, which

4:55

will come up all the time for today. So

4:57

unless you can remember it off the top of

4:59

your head, Ana, which would be very impressive, I

5:01

will read it for us now. The

5:03

full 14th Amendment or just Section 3?

5:06

I mean, I do have it in front of me. You

5:09

want me to try to see if I can remember

5:11

it? You should have read it and pretended that you'd added up the top of

5:13

your head. Yes. It's

5:15

an audio thing. Hey, look over there. Okay. Oh,

5:17

I just realized I know the text. Yeah,

5:19

go for it. Okay. It goes like

5:21

this. No person shall

5:23

be a senator or representative in

5:26

Congress or elector of the president

5:28

or vice president or hold any

5:31

office, civil or military under

5:33

the United States or

5:35

under any state who having previously

5:37

taken an oath as a member

5:39

of Congress or as an officer

5:41

of the United States or as

5:43

a member of any state legislature

5:45

or as an executive or judicial

5:47

officer of any state to support

5:50

the constitution of the United States

5:52

shall have engaged in insurrection or

5:54

rebellion against the same or given

5:56

aid or comfort to the enemies

5:58

thereof. But Congress made. Fbi

6:00

vote of two thirds of each house remove such

6:02

a disability. I love the

6:04

King James version of the Constitution. don't see

6:06

I think it is is it is. There's

6:09

there's a certain gravitas to with yes last

6:11

with the New World Translation right to choose

6:13

and I agree on so that's the relevant

6:15

portion of the Colorado case. And.

6:17

According to the the folks that brought

6:20

suit in Colorado. Or Trump

6:22

ah engaged in in snacks and

6:24

and it was referring to January

6:26

Sixth and that makes him ineligible

6:28

in Colorado. Be. Majority sided with them.

6:30

I believe it was a it's a for

6:32

three split of for three split amongst a

6:34

appointees all appointed by democrats are yeah. So

6:36

notice if you if if you're more cynical

6:38

than I and you believe it, that's going

6:41

to play a significant role. Or

6:43

all all democratic appointees for three

6:45

split and the up. My read

6:47

of it was that the majority

6:50

said look, if we make any

6:52

attempt to use plain English to

6:54

define the word insurrection including and

6:57

specifically by the time of that

6:59

the word was ratified in the

7:01

constitution run eighteen sixties. Trump's

7:04

actions would qualify as insurrection.

7:07

For. That reason he is federally in capable

7:09

of holding office according to cost to the

7:11

law. And. In Colorado, all of

7:13

our state law says everything has to be in

7:15

sync with federal law. Therefore, we have jurisdiction to

7:18

do it. And. Then the descending argument

7:20

when. I'm. Interesting li in my

7:22

read. the dissenting argument in the Colorado case

7:24

did not focus on the word insurrection. In

7:26

fact one of them is like, yep, probably

7:28

did. It is our but what they go

7:31

is. The constitution

7:33

does not specify any level

7:35

of ah. Is this

7:37

a bench trial? Is this a trial by

7:39

jury? I. Is inciting the

7:42

same thing as engaged in it? There's

7:44

no due process built in to this

7:46

constitutional amendment, presumably because that was put

7:48

at the foot of Congress for them

7:50

to spell out. And so if we're

7:52

gonna do this, we have to have some sort of.

7:55

Our. If if we're going to deprive people have

7:57

a voting option and a top office in the

7:59

country there. To be due process and

8:01

that was not achieved in this five

8:03

day ruling that is different than mere

8:06

factual analysis of is he eligible to

8:08

run by age and by by nationalist

8:10

citizenship So that was my my break

8:12

down the tube. Big arguments that where

8:14

the Colorado case. Yeah. And I think

8:16

you've captured them. Pretty. Accurately, I will

8:19

confess that I have not read them and fall

8:21

and I've read snippets of them, but not recently

8:23

because I was more focused on. Okay, so what's

8:25

the. Next step Like the next class since. I'm

8:28

I will notice procedurally it

8:30

did go through a state

8:32

level trial First. That. Trial

8:35

judge ruled that there was

8:37

sufficient evidence of a finding

8:39

of insurrection and but decided

8:41

that section three didn't apply.

8:43

And I'll have to check whether it was at a

8:45

base on the fact that he's not in. The

8:47

President is not an officer. Or. That

8:50

the amendment itself is not

8:52

set self executing. right? So like.

8:55

You know there are provisions in the constitution

8:57

that don't require any legislation to make them

8:59

happen, right? Yeah, So if you have to

9:01

be thirty thirty five to be president, that's

9:03

pretty standard. We don't need extra legislation to

9:05

make that clear. But

9:07

for example, prohibition would have

9:09

been fairly useless without Volstad.

9:11

So. Sometimes and you know,

9:13

a provision of the constitution is self.

9:16

Executing were like new Congress doesn't. Need

9:18

to take any acts and beyond that.

9:20

But sometimes Congress is supposed to take

9:22

action to clarify it's not self. Executing services

9:24

of this is a a linchpin part of his entire

9:26

thing as free self executing In for anybody that's been

9:28

remotely following this you will. You will find that come

9:30

up a lot and I have no doubt it will

9:33

come up with the Supreme court case. It's

9:35

worth coming all the time, but I wanna make sure

9:37

that I understand the self executing clause before we go

9:39

further. So. A be non self

9:42

executing clause would be i'm. actually

9:44

in the colorado springs work is one

9:46

of the says judges refers to provisions

9:49

of the fourteenth amendment is either sword

9:51

were sealed and so do the way

9:53

he describes it if it's a sealed

9:55

this is something that you can use

9:57

defensively like i have freedom of religion

10:00

And the Constitution is giving that to

10:02

you defensively as an individual. That requires

10:04

no further statement from Congress on it.

10:06

But if you're using it offensively, according

10:08

to his read, the Constitution is basically saying

10:11

heads up, Congress, you have this power. We're

10:13

clarifying that you have this power. We're building

10:15

into the Constitution. You have this power. When

10:18

you get around to using it, let us know what you want to do.

10:21

And that's using it offensively. So that's like saying Congress

10:24

has the right to supervise this thing,

10:27

work it out, Congress. If

10:29

you believe it's self-executing, you don't need to

10:31

worry about that. It's there. If

10:33

you think it's not self-executing, then there's

10:35

a scaffolding that was created for Congress

10:37

to build something on if they felt

10:39

so inclined. Right. And if you look at

10:41

the full text of the 14th Amendment, Section

10:44

5 actually does say something about

10:46

how Congress should make any laws they feel

10:48

necessary to put all this into effect. Now

10:51

that doesn't just like, that's not QED, the

10:53

end of the argument, I don't think.

10:57

Clearly it's not, or we'd just be done. Right. And

10:59

that refers to civil rights legislation because Article

11:02

14 is all, we

11:04

beat the Confederacy stuff. Yes. It's part of

11:07

the pre-Reconstruction Amendment. And

11:11

so that's something that's interesting about this

11:13

entire debacle is that when this was

11:15

put into the Constitution, and I mean

11:17

maybe we don't care about original intent,

11:20

maybe we don't care about original meaning,

11:22

lots of different interpretations of the Constitution

11:25

exist, but this

11:27

was put in as part of the

11:29

Reconstruction Amendments and it was intended to

11:31

bar Confederates from holding office, right? Yeah.

11:34

And so that was pretty clear. I think

11:36

when they passed it, nobody would have wondered

11:38

what insurrection meant. Unfortunately, they didn't really say

11:41

much about what a future insurrection might look

11:43

like or what it might be defined as.

11:46

Now, Congress has created legislation

11:48

to criminalize insurrection. So it

11:50

is a violation of a

11:53

criminal violation of a— Section 2883 of the

11:55

U.S. Code. Wow.

11:58

Wow, you just out lawyered me. me. Okay,

12:00

no, you out-sided me. That's different. But

12:02

you may out-lawyer me yet. And

12:06

I did just check. They found the

12:09

lower court in Colorado decided that Section 3

12:11

did not apply to the presidency

12:13

because the presidency is not listed.

12:15

So basically not an

12:18

officer of the US. Great. Okay. So then

12:20

let's do this. Before we get to the

12:22

Supreme Court stuff, I want to

12:24

talk about what I view as the weak arguments and the

12:26

strong arguments in terms of this the

12:29

weak arguments that have been

12:31

proposed by, I'm going to

12:33

say pro-Trump and majority

12:36

and dissent. What should we use for our terms here? Because

12:38

we're- I think we

12:41

can go with majority and dissenters if we're

12:43

talking about the Colorado case. Because yeah, it

12:45

was four opinions, seven justices or judges, and

12:47

then there's four, three splits. So

12:49

three dissents technically, I suppose. So

12:51

okay, well actually, okay, these aren't the dissenters.

12:53

This is the Trump campaign. When

12:58

responding to the original court decision and in responding

13:00

to the Colorado Supreme Court case,

13:03

the Trump campaign said because

13:07

the article

13:09

that you just read on, and I'll repeat the

13:11

relevant part again, no person shall be a senator

13:14

or representative in Congress or elector of president and

13:16

vice president or hold any office, civil or military,

13:18

under the United States or any state who-

13:20

and then it goes on, right? Because it does not specifically

13:23

mention the president of the United States, and that seems

13:25

like a fairly glaring omission that they would mention the other

13:27

things, but not the president. It is not

13:29

relevant and the president is not specific

13:32

to this one. I think that's an

13:34

immensely weak argument. Really?

13:36

Oh yes. Okay.

13:40

Or hold any office, civil or military, under

13:42

the United States. So that's a really good

13:44

question. And here's the- so I can talk a little bit

13:46

about a few things in there. And

13:49

I'm going to confess right off

13:52

the bat that if section three

13:54

doesn't apply under this framework, this

13:56

idea that this non-officer thing, it's

13:58

going to be a to

14:00

be technical legal, it's

14:03

very technical law, legal

14:05

interpretation. It is not common sense.

14:07

I understand why people think that's

14:09

insane. Common sense would

14:12

dictate, yeah, okay, he's an officer. I mean, he's

14:14

the president of the United States. But then if

14:16

you go back and if you want to play

14:18

Antonin Scalia and dig around and see what words

14:20

meant at the time, you're going to

14:22

find something different. And you're going to

14:24

find that the Constitution mentions officers several

14:27

times and never

14:29

includes the president under officers.

14:32

And you'll love this because it

14:35

came from the British use

14:37

of the term offices under the crown.

14:41

So i.e. appointments,

14:43

people who are appointed to office,

14:45

not elected to office. And

14:48

then once we

14:50

set up our system, it very much looked, we

14:52

borrowed a lot from England. Our

14:55

sovereign equivalent versus appointees thereof. Because

14:57

it says office under the United

14:59

States instead of office under the

15:02

monarchy or the queen or I guess it would

15:04

be, you know, we've got a

15:07

king. They have a king. I don't have

15:09

a king. And

15:12

yeah, so I think that that argument

15:14

is the least intuitive. It's hard

15:16

to wrap your head around as just sort

15:18

of common sense of point. I get

15:20

it. There's this lawyer talk is like, like,

15:23

like, like to I think most people for talking

15:25

about separation of church and state, which we've previously

15:27

discussed in the program, yeah, would go, oh, the

15:30

Constitution guarantees separation of church and state. What

15:32

it says is Congress shall make no establishment

15:34

of religion. So if you want to get

15:36

lawyerly about it, and this is this is

15:38

the time to get lawyerly, you could say

15:40

and Randy Barnett, when we had him on,

15:42

said, look, it says Congress can't do it.

15:44

If a state legislature wanted to do it,

15:46

the Constitution doesn't forbid them. That's not how

15:48

the courts have interpreted it, but you could

15:50

within a reasonable framework,

15:53

look and go look, the actual letter

15:55

of the law says X, not Y.

15:58

I'm still not moved. I appreciate it. the historical background

16:00

there. If I'm looking

16:03

at this just from a kind of logic

16:07

empiricism, looking at the words and coming to

16:09

them, or hold any office,

16:11

the fact that we refer to the office of

16:13

the presidency as a thing would indicate to me

16:15

that it is an officer. Plus, during the time

16:17

that the amendment was ratified, or shortly before then,

16:19

the president did refer to himself as an officer

16:21

on a fairly regular basis. You'll find like, I

16:23

think Jackson and some other people would say like,

16:25

the officer of the president or something to that

16:27

effect. And then when the amendment itself

16:30

is ratified, and I will note here, I do

16:33

not think we need to really look into intent very

16:35

deeply because I'm only concerned with the letter of the

16:37

law, not the underlying rationale

16:39

of the people behind it. Because a

16:42

lot of the time, the effect

16:44

of the law goes different than the intent. So intent

16:46

is not very important to me in terms of

16:48

constitutional analysis. That said, they had this conversation on

16:50

the floor of the Senate when the 14th Amendment

16:52

was ratified, where a guy came up and he

16:55

goes, hey, why didn't you include the president? And

16:57

the guy that wrote the amendment went, well, because

16:59

it says, or hold

17:01

any office, it's implicit. So I would take

17:03

from that that the president is an officer

17:05

and that this is germane to the presidency.

17:07

So the argument, and I'm

17:09

not necessarily adopting this argument, but

17:12

the argument against that would be,

17:14

okay, well, when you're doing

17:16

a, when you're interpreting constitutional law, you're

17:18

looking at the constitution as a whole

17:21

document. And if you do that, and

17:23

setting aside common parlance and the way

17:25

that people might refer to themselves or

17:27

the office of the president, et cetera,

17:33

officer under

17:35

the United States may

17:37

be legally different from, and

17:39

there's three clauses where they talk about

17:41

officers and they don't include the president

17:43

in any one of them, and the

17:45

impeachment clause. Yes, I appreciate that there

17:47

could be relevant

17:50

linguistic differences. One of the other things

17:52

that was brought up by the Trump campaign that I think

17:55

is also a very weak argument is that there

17:57

is a meaningful legal distinction between an officer

17:59

of the United States versus an officer

18:01

of the Constitution, and the president

18:03

qualifies as the latter but not the

18:05

former, and that to me was just

18:08

a lot

18:10

of textural jargon that seems fairly

18:12

meaningless. So I'm not swayed by these. I

18:14

haven't heard that one. I think I... But

18:17

there's a similar argument that notes

18:19

that the oaths are different because

18:21

it does recur... Like Section

18:23

3 does mention who has previously taken

18:26

an oath to support the Constitution, and

18:28

that is the oath that most

18:31

officers take, appointed officers

18:33

take, but there's a whole

18:35

separate oath that is taken

18:37

by the president. Now, this

18:39

doesn't sway me either because

18:42

I mean, like, to defend,

18:44

protect, support, you can

18:46

throw those words into... They

18:49

basically mean that they may. Sort of because it

18:51

says in the thing... Excuse me. In

18:54

Article 14, sworn

18:56

an oath, having

18:58

previously taken an oath to

19:01

support the Constitution of the United States, this

19:04

is really hair-splitting where they're like, well, he

19:06

didn't swear to support the Constitution of the

19:08

United States. He swore to uphold the laws

19:10

of something like that. Yeah, it's something like that.

19:13

Or to protect and

19:16

defend the Constitution the same as... Right.

19:19

... support the Constitution, that kind of thing. I'm not

19:21

moved by that. I'd also say, like, I

19:23

appreciate looking at the Constitution as a whole and trying to figure

19:25

out how things are used within

19:29

the Constitution, but if there's a

19:31

meaningful distinction between president

19:33

as officer and that

19:35

is brought up with the impeachment not related

19:37

to the president, that would mean

19:39

that there's no constitutional mechanism to impeach a president.

19:42

They bring this up in the Colorado case

19:45

that if by the logic of the Trump

19:47

campaign that the president is not an officer,

19:50

the impeachment clause in the

19:52

Constitution that was used against Donald Trump and

19:54

was used against Bill Clinton and Andrew Johnson

19:57

and would have been used against Richard Nixon

19:59

is an unconstitutional mechanism. that everybody that voted

20:01

to impeach Clinton or Trump was

20:03

doing so fallaciously because you literally cannot impeach

20:05

the president, which seems a bridge too far.

20:08

I agree that that is

20:13

a bridge too far, but the

20:16

Impeachment Clause does separately name the president, vice

20:18

president, and all civil officers. Oh, does it?

20:20

Okay. Yeah. And so that's basically where the

20:22

arguments are coming from. It's like that

20:25

sometimes in the constitution, it distinguishes officers as

20:27

separate from the president. Like there's no need

20:30

to list them both there if

20:32

they're the same thing. The other thing

20:34

is if you think of officers as

20:36

people who are appointed rather than elected,

20:38

then we have the appointments clause, which

20:41

is one of the other ones that

20:43

mentions this and says that the president

20:45

shall appoint all officers of the United

20:47

States. Now, to my knowledge,

20:49

no president has ever appointed him since, nor

20:52

has the vice president gone in and been elected

20:54

and sworn in and then appointed himself. So I

20:57

think that that's where, and again, this is like

20:59

a deep textual kind of like, did

21:02

they intend to include this? I do think it's odd

21:04

or at

21:07

least interesting that they bothered to list

21:10

congressional representatives and electors and officers,

21:12

but wouldn't have thrown the president

21:15

in there because I don't believe

21:17

that Congress

21:19

counts as officers of the

21:22

United States either. I mean,

21:24

my guess, and I think you hit the nail on the head earlier,

21:26

is that no one thought Jefferson

21:28

Davis was eligible to run for office based on

21:30

this. And I don't think anybody thought Jefferson Davis

21:32

was going to run for president and maybe win.

21:35

So it just wasn't really something that they needed

21:37

to do. I know this will probably come up,

21:41

and I'm glad you brought this up because I did not pick

21:43

up on that in the court case. And this does seem, I'm

21:46

not swayed by it, but it seems relevant. The

21:48

basic idea is officer could mean

21:50

in a constitutional context and appointee. And

21:52

if that's the case, it's not the

21:54

same thing as an elected official. Right.

21:56

And you keep in mind too that,

21:59

again, like, looking at the history

22:01

of this amendment, I think it was

22:03

Alexander Stevens, the VP of the Confederacy,

22:05

like when the war was over, he

22:07

for sure showed up in Congress, like, I'm just

22:09

going to keep working in Congress. And they were like,

22:11

no. So it was stuff like that

22:13

that they were trying to get rid of. And I find, I

22:15

don't know. Well, I mean, they were worried

22:17

when they defeated the Confederates that they would just

22:20

all go right back to business. Exactly. And they did,

22:22

but it took about 20 years. It took a whole

22:24

nother election for them to go, all right, fine. You

22:26

can be mean to black people. This

22:28

is me getting into some history here. They

22:31

did pass an amnesty. Yeah, in 1872,

22:33

they passed an amnesty act. Later than that,

22:35

I think it was 1880 or so. So like,

22:37

you know, they had this like, no, you

22:40

Confederates bad people can't hold

22:42

office, can't do this. And

22:45

then something, some years later, about 20 years

22:47

later, 10, 20 years later, they

22:50

said, okay, enough time has passed. Let's not

22:52

keep fighting with each other over this. But

22:54

I don't think that necessarily nullifies Section

22:57

3. No, I don't think

22:59

so. But let's move on

23:01

from that. Interesting point. I do think it's

23:03

one of the weaker arguments, though, in terms of if I

23:05

were on the court, what I'd be looking at.

23:07

I think it would be one that would not

23:10

be received well by the public. Fair.

23:12

As a member of the public that never went to

23:14

law school, I agree with that. I think that you're

23:16

correct there. It would not sway me. Right. Okay.

23:20

The next argument that I don't think

23:22

makes a lot of sense that I've

23:24

heard is Colorado has no

23:26

authority to make this decision because it's a state.

23:29

And this is a federal election. And

23:32

if anything, writing the 14th Amendment, due

23:35

to all of the Confederate chicanery that

23:37

was going on, there's no possible way

23:39

they wanted to empower states to disqualify

23:41

candidates because the whole purpose of that

23:43

was to stop these Confederate states from

23:45

maintaining power. I am not

23:48

swayed by that argument either for the very simple reason

23:50

that Colorado under their law has said

23:52

all of the state elections in Colorado have

23:55

to be in comportment with federal law, which

23:57

means that I, as an official in Colorado,

23:59

can say you are not

24:01

qualified to run at a federal level, therefore

24:03

I am disqualifying you to run at a

24:05

state level. So I think them saying you

24:07

do not get to be on a state

24:09

ballot in Colorado because we've assessed that you

24:11

are federally incapable of it is Jermaine. I

24:18

have different ideas about that. Go for it. Let

24:21

me try to draw that out. This is all part of

24:23

me removing the fog. So like remove some of my

24:25

fog on it. I'm trying to remove

24:27

some of my own to be honest. Here's

24:30

the thing about this. It's never been done really.

24:32

No, this is weird uncharted territory. It's

24:35

not quite unprecedented. We have one

24:37

precedent. Yeah. One.

24:39

A flat one. We'll get to it in

24:42

a minute. Yeah. And then there was

24:44

another case where the Section 3 was used, but it

24:46

didn't go through the court. So it

24:48

didn't end up at the Supreme Court. So in terms of

24:50

Supreme Court precedent, we got one. One.

24:52

And it says the president is not an officer. It

24:57

was Salmon P. Chase, and

24:59

it was Henry Griffin, I think. Okay.

25:03

The Griffin case, I know that the one you're referring to,

25:05

what happened with the Griffin case is this is like 1870

25:07

or so. So

25:11

it's after the Civil War. It's

25:14

after the 14th Amendment has been

25:16

passed. There's a guy named Griffin

25:19

who was convicted of murder or something,

25:21

and he was sent to jail for

25:23

a couple of years by a judge.

25:25

Yes. And then, when

25:27

he came out, the judge was a ...

25:29

He'd formerly been a federal office holder, either

25:31

a member of Congress or something, but he'd

25:33

sworn to uphold the Constitution. So he's relevant

25:36

under that. And he was a

25:38

member of the Virginia State Legislature during the war. So

25:40

he was a Confederate and a member of the Confederate

25:42

government during the war. So Griffin

25:46

contested his decision and went to a

25:48

district court and said, I should

25:50

not be in jail because that man is not

25:52

a legitimate judge. He's a federal judge, And

25:55

he is a former Confederate who should

25:57

not be allowed to hold office a

25:59

court. Linked to the constitution under Section Fourteen

26:01

right. the district judge agreed with him but

26:03

that it got kicked up to the circuit

26:06

level and Samuel P. Chase who was the

26:08

Chief Justice of the Supreme Court but was

26:10

acting as a circuit judge because this is

26:12

back in an awesome time a judicial history

26:14

he was. He was in charge of Virginia

26:16

worst judge his to ride horses all the

26:18

supreme court justices. Had to ride

26:20

a horse around the country and be

26:22

a circuit judge. So as a circuit

26:25

appellate judge. He. Ruled in

26:27

favor of a against

26:29

Griffin. And. He basically I'm from

26:31

what I can tell with. Yeah

26:34

but this is eat he

26:36

did to the he went

26:38

and. Look. This good be

26:40

chaos if we go. All the judicial decisions on

26:42

like petty criminal matters are thrown out because the

26:44

guy was a Confederate. Ah he did.

26:47

He did something called an argument from convenience

26:49

where he basically is I defended his. His

26:51

argument have to be it's illegal concept is

26:53

this announcing. Ah,

26:55

I can't say that I I can

26:57

explain what it is. What My read

26:59

on as he went When you've got

27:01

dueling interpretations of a law night that

27:03

are both reasonable, deal with the one

27:05

that causes the least trouble. Oh okay

27:08

so if if you're if you're debating

27:10

between two and you're using a tie

27:12

breaker for the tie breaker go with

27:14

the the easier one right answer the

27:16

easier One of the said since he

27:18

went is just a like allow that

27:20

judicial ruling to be legitimate and then

27:22

he further goes on and he says

27:24

this is not a self executing closet

27:26

because exactly Congress has more than welcome.

27:28

To come up with the legal framework to

27:30

remove such people but tell which time they

27:33

do, we are not going to birds the

27:35

courts with having to figure out every single

27:37

Confederate officer. every single confer that's near gonna

27:39

happen. Congress. Can figure this out of

27:41

it's own time. Therefore, Griffin go back to jail. Rights

27:43

And you're right. I am. I initially said it

27:46

was based on the officer se, but it's not

27:48

because it wasn't even a president, so I don't

27:50

know I said that. Ah. Okay, brain farts. Prime

27:52

target. For the record, it's. like that your

27:54

honor i'm a yeah it was saying

27:56

that not self executing which has the

27:59

other ah certain major argument saying, all right,

28:01

well, if Congress was to clarify how we're

28:03

supposed to apply this, that's great. But

28:05

there was another one you were talking about

28:07

with the states, right, whether or not Colorado

28:09

can remove someone from a ballot, even

28:11

though it's a state, and the idea

28:13

behind the 14th Amendment being to like,

28:15

say, hey, states, chill

28:20

out. So I find, I

28:23

find it hard to this is this

28:25

is this is not the lawyer necessary,

28:27

necessarily speaking right now, this is more

28:30

just the human Anna saying, I struggle

28:32

to see

28:37

how a federal

28:39

provision in the federal constitution related to

28:41

a federal election, although it does apply

28:43

to states to and state

28:46

office to could

28:49

be interpreted and applied independently by

28:51

states that seems like that's not

28:53

something they would have wanted after

28:55

it was passed. I'm sure they would have wanted

28:57

it. Yeah. And then

29:00

there's this, this is more like

29:02

a practical issue for me. If

29:05

every single state can make their

29:07

own decision about who gets to

29:09

run for federal office, we're

29:12

going to end up in chaos. And

29:14

you know, because that the

29:17

Colorado case and the main case, which is a

29:19

bit different, because that was the Secretary of State

29:22

making the call instead of the

29:24

court. But

29:27

like other like, I think Michigan is

29:29

one of them that said, now we're

29:31

not touching it. Even Gavin Newsom has

29:33

said, we're not removing people from ballots

29:36

based on anybody worried about

29:38

California voting for Trump. And

29:40

honestly, is Colorado going to go for Trump? There's no

29:42

way Maine is going to go for Trump. Yeah,

29:44

like, we'll talk about looking at

29:46

this from it from an impactful standpoint here in

29:49

a minute, but for for blue states that are

29:51

they're doing this right now, I think it's a

29:53

horrible misstep. Your point is

29:55

taken on the idea of this would cause

29:57

problems by letting states interpret whether somebody is

30:00

federally eligible for office. The way that it's

30:02

brought up and the Colorado court case is

30:04

twofold. The majority says, look,

30:07

on a routine basis, the Secretary of

30:10

State for Colorado will disqualify somebody running

30:12

for president because they are not a

30:14

naturalized citizen or they are underage. 35

30:17

to run for president in the United States. Right?

30:19

And so they go, this is a regular thing,

30:21

right? And that's perfectly acceptable and

30:23

it would gum up the court system if somebody

30:26

who's 34 wants to run for

30:28

president and Colorado has to pretend that they're

30:30

legitimate up until it finally goes to a

30:32

federal appellate court or something. That just wouldn't

30:34

work. The way the dissenting voice says on

30:36

that is that, yes, but

30:39

you're discussing, what

30:41

does he call it? Facial. Prima-facial

30:45

maybe? He keeps using the word facial, which

30:47

I don't know in a legal context, but

30:49

he basically goes, look, you're doing simple, yes,

30:51

no factual analysis there. Yeah. Which a state

30:53

level, a state court's perfectly capable

30:56

of doing. What we're

30:58

doing here is talking about in effect

31:00

convicting somebody. And he

31:03

goes, the state is entitled to do rudimentary

31:06

factual analysis that no one would contest.

31:09

But what we shouldn't have states do is

31:11

a very

31:14

quick assessment of a uncharted,

31:17

murky constitutional provision that is federal,

31:20

has no due process and has

31:22

no ability for discovery,

31:25

being able to talk about it. And I think

31:27

under Colorado law has to be done within five

31:29

days because they're trying to get things on the

31:31

ballot in time. Right. So

31:33

that was the counter position. Okay.

31:36

So what

31:38

am I responding to? Oh, no,

31:40

I'm just saying, I'm swayed

31:43

by, I think Colorado, I think

31:46

Colorado law could say if

31:48

we determine someone's not eligible

31:51

for federal law, we would apply that to our own

31:53

standards in our court. So that one I'm not moved

31:55

by, as we're going to throw this out because Colorado

31:57

could not make a, could not make

31:59

an. analysis on whether something's federal applicable or not. So I

32:01

could be wrong. I just I wanted to go through the

32:03

things that so far I'm like, no, I'm not I'm not

32:05

really swayed by that. That's one of them. That's good. So

32:08

and I agree I see what you're saying and I

32:10

think that I find that

32:12

a more compelling argument I think that

32:14

you know again with talking about self-executing

32:16

amendments and provisions of the Constitution again

32:19

It's a yes. No question. Are you 35 and we

32:21

can find out? Yeah Did

32:25

you engage in insurrection is not

32:29

Nearly so clear-cut agree. We don't

32:31

even have a definition of insurrection at

32:33

this point Do you know it does it like

32:35

I looked at the statute that you so wisely

32:38

cited because you did your research You see mess with

32:40

a squiggly line. Does that mean? Subsection

32:46

That little with this little yeah, it's

32:48

one of my favorite I like pretty

32:50

symbols I like the ampersand too. Yeah

32:52

me too Big fan of

32:54

the ampersand but yeah,

32:56

so the subsection 283

32:59

yeah, tell it to 83, you know it

33:02

says it's a crime to engage in

33:04

insurrection and you can't be president or

33:06

you can't run for it basically reiterates

33:08

section 3 and Makes

33:10

it a federal crime, but there's no definition

33:13

of like I don't know what the elements

33:15

of insurrection are I couldn't define it for

33:17

you You know,

33:19

and so that I think is a big deal is that we

33:21

just don't have a

33:23

really clear standard definition of the

33:25

word insurrection or how to What

33:29

is it to engage in insurrection? You

33:32

know is the fact that Trump

33:34

was you know theoretically maybe inciting

33:37

an Interaction the same

33:39

as engaging in it. I concur because I

33:41

think that we're this is all gonna circle around that Yeah,

33:43

we put a pen on that for a second and do

33:45

with a couple of the other sub arguments because I think

33:47

that's the Biggest thing of this whole deal. Yes. How do

33:49

we find insurrection and who gets to define it, right? A

33:53

couple of arguments that I also have not swayed by

33:55

one of which I've made So on

33:57

we're not wrong where I play a pundit regularly My

34:00

hot take on this before reading the court case

34:03

was, look, you can't believe

34:05

in democracy and then not trust the people to

34:07

make the right decision. You can't say democracy is

34:09

great, but we're going to keep the idiot public

34:11

from voting in favor of a bad guy. That's

34:14

my previous position. The

34:16

Constitution is explicitly doing that with Article 14.

34:19

The Constitution is making an anti-democratic

34:21

premise of the people do

34:23

not get to elect Confederates. The people do not get

34:26

to elect people that have engaged in insurrection. I

34:29

think that that one's a reasonably weak argument that

34:31

I've changed my position on, at least in terms

34:33

of constitutional analysis. The

34:36

other one that I think is that

34:38

I'm not swayed by is the this will

34:40

cause chaos. The reason

34:42

that I'm not swayed by that is I

34:44

really don't want judges making decisions based on

34:46

what they think the outcome is going to

34:48

be rather than the actual law itself. I'm

34:51

worried about that politically, but if a judge went, I think

34:53

the law is clearly this, but I'm worried about the outcome

34:56

of the law, so I'm going to say otherwise. I would

34:58

not want that to happen. Oh, and I agree with

35:00

you, and that's not what I'm advocating. So let me ...

35:04

We're not applying. We're not applying. We're

35:06

fine. Okay. Give

35:08

me a minute. All right. So

35:11

where were we? I wanted to get out those

35:13

things that I was just like, Matt, I'm not swayed by this. That

35:15

way we could focus on the big things. Yeah, you're not swayed by what

35:17

was the last one was basically the ... We

35:21

can't ... Okay. You can't knock him

35:23

off the ballot because it would be problematic. Oh,

35:25

anti-democratic. It will cause violence or it will cause

35:27

electoral disruption. I'm not swayed by that because the

35:29

point of interpreting the law is not to look

35:31

at the outcome. It's ...

35:33

You wouldn't go, that law says X, but it will

35:36

result in this outcome I don't like, so let's pretend

35:38

it says Y. I don't want that. I think that that's

35:40

a very bad approach. A very bad approach.

35:43

I think the problem with the Section 3 issue is less

35:45

of that and more just, we don't know what

35:50

this really means. We don't have any due

35:52

process in place. At

35:54

what point can ... All these

35:56

questions about this particular provision, but

35:58

I would absolutely ... oppose using

36:02

the justice system in either

36:04

direction for either

36:06

political reasons or because you fear

36:09

a bad reaction from the public.

36:11

The law has got to be

36:13

the law or if

36:15

you can't rely on the law, it's kind of like

36:17

our conversation about jury nullification. In

36:20

concept, it's wonderful, but if juries could just

36:22

invalidate laws all the time, then you and

36:24

I would go through our lives having no

36:26

idea whether or not we were actually violating

36:28

a law or not, maybe we could convince

36:30

a jury to nullify that. I

36:33

think that that's more my concern with

36:35

the if each individual state

36:37

applies Section 3 differently, how can

36:40

we have a national election? But

36:42

then again, and this

36:44

is kind of something and we can put a pin

36:47

in this, but it's interesting that

36:49

suddenly these arguments are

36:52

like this whole Section 3 thing

36:54

is turning people

36:56

who are normally very progressive and

36:58

de-textualist. And also, there's

37:01

no arguments about decentralizing

37:03

power and states' rights. That's

37:07

one of the things that's so mind-boggling about all of

37:09

this. I feel like it's all upside down. Everybody

37:12

is on the opposite of where they usually are

37:14

or you expect them to be because the

37:17

argument I hear all the time

37:19

from people who presumably are on the

37:22

progressive side of the things is that,

37:24

well, the amendment doesn't say a

37:26

conviction is required. Therefore one

37:28

is not required. It's the text and all we need is

37:30

the text. And

37:33

I'm like, okay, but you can't

37:35

get mad about Dobbs because abortion

37:37

was, that right came from emanations

37:39

and penumbras from the text of

37:41

the law. So we're going to

37:43

be textualists, strictly it doesn't say

37:45

a conviction is required, therefore it's

37:47

not, I don't think most of

37:49

those folks would be cool with using

37:51

that approach to the

37:53

Constitution in most cases. I'm a

37:56

thousand percent with you and I would rather

37:58

have somebody be... I

38:00

would rather disagree with somebody that is

38:02

consistent than have somebody inconsistent that

38:04

winds up where I'm at. I would rather

38:06

have somebody be consistent in an application. I'm

38:08

emphatically in favor of that. Can I ask

38:10

a dumb question that kept occurring to me

38:12

when I'm reading this? Okay,

38:17

so I'm flying to Iowa the next couple of days. I'm

38:19

going to a caucus. Oh my God,

38:21

I wish I could go. I'm so curious. You

38:23

have to do an episode. Are you... Oh,

38:25

that's where I'm going? Oh. I'm

38:28

not going to holiday in Des Moines. You just want to

38:30

stand outside and... I'm full of a flat agricultural state, thanks.

38:32

I can just go home if I want to do that.

38:34

If you want to stand outside and put negative 12 degrees

38:36

or something. Yeah, if I want to go outside and hang

38:38

out with scarecrows, I'll just go back to Woodward County. So,

38:43

my understanding of the difference between a caucus and a

38:45

primary is a caucus is a completely

38:47

party run operation, whereas a primary

38:49

is the state assumes responsibility for

38:51

administrating the election and the ballot.

38:54

This sounds right to me. Yeah,

38:56

and by the way, I think it should all be

38:59

caucuses. You could run a caucus better, but I'm

39:01

getting into philosophy mode, not legal mode. I think the

39:03

way we ought to do it is where Republicans

39:06

and Democrats get to pick whoever they want to endorse and

39:08

it has nothing to do with who's on the ballot. Then

39:11

they go, we really want this guy. Hopefully that

39:13

guy's on the ballot. And then they go, that's

39:15

the guy we've endorsed, as opposed to now where

39:17

the Republican and Democratic parties

39:19

operate as quasi-governmental entities that

39:21

are legal gatekeepers. Primaries

39:24

are that kind of thing, right? You

39:27

get to pick your guy and then that's

39:31

run by you as opposed to the

39:33

state. So I understand why, given that

39:36

it's a primary in Colorado, that

39:38

the government

39:40

would be putting the names on the ballots because

39:42

it's a primary, not a caucus, and why they

39:44

would go, hey, you were suspending our abilities when

39:46

you do that. But if

39:48

we got out of the primaries, if we

39:50

got onto the actual day

39:53

of presidential election, it

39:55

is also my understanding that none of us are actually

39:57

voting for president, that legally what we are doing is

39:59

voting for president. for electors. We have pledged

40:01

on our behalf to vote for the candidate

40:03

we want, but that's this kind of weird

40:05

legal fiction that we use as shorthand. But

40:08

in reality, what people are doing is they're

40:10

voting for Bob Gunderson, who's a Democrat who

40:12

will probably vote for Joe Biden, and they're

40:14

voting for Janet

40:17

McGillicuddy, who's a Republican who

40:19

will probably vote for Trump. If you were attempting to do

40:21

this for the actual presidential

40:23

ballot as opposed to the primary ballot, would you

40:25

even be able to have this conversation we're having

40:27

since it's the electors that are on it and

40:29

not the presidents themselves? I have no idea.

40:31

And honestly, that's one of the things

40:33

about these two cases that's interesting is

40:36

they've only removed him from the primary

40:38

ballot. And I'm

40:40

not clear on... I mean, I heard

40:44

some rumblings. I have no idea if this was

40:46

ever carried forward. But for example,

40:48

Colorado, the Republican Party in Colorado

40:50

kind of said, oh, oh, okay. Well,

40:53

then we'll just caucus. So

40:55

I have no idea if anybody's actually following

40:57

through on that. So

41:02

that could happen in theory, I guess.

41:04

But yes, so far, it's just the

41:06

primary ballot, which to me, I think

41:08

that makes it a little more uncomfortable

41:11

to me in the

41:13

sense that the primaries are about the

41:15

party selecting who is going to represent

41:17

them. And then in the general, you're

41:20

selecting electors or whatever it

41:22

is. But, you know, so

41:25

I would see a stronger argument, I

41:27

think, for a state saying, we have

41:30

to remove this person from the federal

41:32

ballot because they're not qualified for federal

41:34

office rather than saying we

41:37

have to remove them from the

41:39

primary ballot to

41:41

prevent him from being selected

41:43

by the party, which

41:46

is not an election to office.

41:48

Just again, this whole thing is

41:50

I feel like the

41:52

Chinese curse, may you live in interesting

41:54

times is happening all over us all the

41:57

time now. We're

41:59

slathered in Chinese. Starters: Lathered and

42:01

Chinese curses and probably has trump.

42:03

Was not tough enough on China. that's what are you

42:05

Mad is always but is always little at risk of

42:07

on China I tell ya. And so.

42:10

Said. So there's a lot. There's a lot to all

42:12

of this, in addition to just. The. Legal arguments,

42:15

So. Thank you for a dozing

42:17

me in in working through the Colorado decision.

42:19

As I understand at me what were the

42:22

strong arguments, what were the compiling? I imagine

42:24

that the be strong argument smear twofold. I'm

42:26

I think that the argument that I I

42:28

thought made a very good point on the

42:30

majority side was that. The

42:33

word insurrection is actually not that loose.

42:35

That. Are Insurrection used both

42:38

colloquial colloquial. He now.

42:40

Ah, He and at the time

42:43

it was ratified is is. Within.

42:45

The bounds of what Trump did so of this

42:47

is what they say in the case they bring

42:49

up. Know a Webster's Dictionary as

42:51

of eighteen Sixty, which is before the a

42:54

member was ratified but would have been the

42:56

language of the day. Insurrection was defined as

42:58

a rising against Civil War political authority. The

43:00

open an active opposition of a number of

43:02

persons to the execution of a law in

43:05

a city or state. So. The

43:07

Colorado court goes. Ah, Yes,

43:09

Trump was trying to do that. He

43:11

was trying to add a undemocratically subvert

43:13

the outcome of an election. And

43:15

he was inciting a riot with

43:17

the specific intent of getting them

43:19

to change the outcome of the

43:21

election by force or threat of force

43:23

Their exact the quote from the

43:25

cases. Rather, It suffices for us

43:28

to conclude that any definition of insurrection for

43:30

purposes of Section Three would encompass a concerted

43:32

and public use of force or threat of

43:34

force by group of people to hinder or

43:36

prevent the Us government from taking the actions

43:38

as a sorry to accomplish a peaceful transfer

43:40

of power in this country. I.

43:42

Am I'm persuaded by that? However,

43:44

The. Art. Of gonna

43:47

attack above these zagat the counter argument

43:49

that I am also persuaded by his

43:51

of as you said earlier, this is

43:53

a a murky situation. It's not a

43:55

factual analysis, the didn't have due process.

43:57

There's been no court that is convicted.

44:00

The insurrection. Not even charge star. He's not

44:02

been charged with insurrection if he had been.

44:05

Charged by a court with subsection two

44:07

eight Three. So it does it. And

44:09

we never had the Anthrax a law

44:11

that yeah, it. Had that been the

44:14

case then yes there would have been a court the

44:16

with he committed insurrection and this would all be legitimate

44:18

were there be a much stronger argument for it. But

44:20

as it is. That is not

44:22

happened. There is not been due

44:24

process. Doing anything of this magnitude

44:26

in this amount of ambiguity without

44:28

having due process is a bridge

44:30

too far to go here. So

44:32

they make the argument that. Of

44:35

this is not self execute er she made

44:37

the the yes it is not a self

44:39

executing claws. And that

44:42

the. Of. Did

44:45

that? the ambiguity and due process makes is

44:47

something that Congress either has to spell out

44:49

where the very least, he's convicted of in

44:51

a court and neither of those things have

44:53

happened yet. So. We gotta

44:55

defer to. The people to

44:57

allow to make their own decisions. there. So as I

45:00

find that very. Compelling and.

45:02

I think that you know that's. Having

45:05

a trial on the insurrection class sin.

45:08

Would. It I mean that gives Trump

45:10

the due process or in. It's funny

45:12

because the Fourteenth Amendment is a due

45:14

process clause. The first the whole first

45:16

bit of that is due process and

45:18

then it in and a. You

45:20

know, gets further. the two thirds compromise that.

45:23

Same full two thirds compromise. In here

45:25

and there was no drafted Anyhow, in it's still

45:27

in the Constitution as has been saying, you know,

45:29

amended bet. It's.

45:33

Easy. For and again, I'm not saying we

45:36

should use the law just because I was

45:38

in a one way or another to influence

45:40

politics or because we're afraid that people won't

45:42

like the law or be in a there's

45:44

ways to change the law. If you don't

45:46

like get, we need to apply it evenly

45:49

and equally. But.

45:51

In this case, I think that it is, if

45:53

nothing else, if there had been a trial. And

45:56

he had been convicted. A

45:58

lot of people who find. Disturbing that

46:00

our independence like me I mean blood.

46:03

There's nothing and me that once trump

46:05

anywhere near the Oval Office ever again.

46:07

I promise you. And you

46:09

know when I'm if it if

46:12

I say any saying that is

46:14

anti. using. This. Section.

46:17

Three here. It's not because I'm here to

46:19

defend Trump. The man. I'm

46:21

so I you know I feel like he says

46:23

you kind of have to say that explicitly. Of

46:26

his losers is around as he won by the way

46:28

because it is one of those things where I think

46:30

for people that are not be nakedly partisan yeah this

46:32

becomes much weird exotic. There's a lot of people that

46:34

case or I think I am I think of and

46:36

your can't by the way I'm less and your camp

46:38

when I was before I read this but I think

46:40

broadly speaking I would I'm I'm leaving their directions but

46:42

of of the same thing where of like. I.

46:45

I'm not voting for President Trump. Not

46:48

going as it is very important to me

46:50

that the law be due to flee and

46:52

accurately executed according to the law. And that's

46:54

why I don't like Trump is because he

46:56

gives flouting the law So like it's important

46:58

to me that the law be maintained. Yeah,

47:00

yeah, And again equally against all

47:02

a you know you selective prosecution

47:04

is just a bad idea. I'm

47:06

but I think that. The. Yeah, so

47:09

even if it was nothing more than saying

47:11

is if he'd had a trial. And.

47:13

Been found guilty of insurrection. That.

47:16

I think independence would be. You.

47:18

Know and and moderate to be like.

47:20

Okay, fair enough. He had a chance

47:22

to cross examine it out like witnesses

47:25

against him were cross examined. He was

47:27

represented by counsel. It was a criminal

47:29

trial of the finder of fact the

47:31

juried did like. I think it would

47:33

just be more palatable and I find

47:35

it a little hard to believe that.

47:39

Removing. Somebody. From.

47:42

A ballot at this point. Based.

47:45

On. Commission of a

47:47

Crime Like is specifically on the

47:49

commission of a climate. That.

47:52

Is. A stat is

47:54

is in statute and a trial A

47:56

case could have been brought for insurrection

47:58

and it was not. I'm.

48:01

So. That to me. Makes.

48:03

This a much stickier wicket and them

48:06

a lot more uncomfortable with it because

48:08

the thing is is that if we

48:10

can allow states to define it's and

48:12

and what really makes me nervous as

48:14

the language about aid and comfort bear

48:16

to to the enemies of the United

48:18

States And here's and and this again

48:20

this is not an argument that. Should

48:23

be taken as a legal.

48:25

Arguments that. Again,

48:29

Is since this chaotic kind of like

48:31

because if this happens then pretty soon

48:33

there's gonna be somebody in Texas who

48:35

decides that Biden failed to support the

48:37

constitution, says he didn't enforce the immigration

48:39

law right? and so then he goes

48:42

to court and get some throw. Now

48:44

he's off the ballot. Insects that like

48:46

this this good? This could be a

48:48

race to the bottom real fat. I

48:50

concur of I would. I would very much apply

48:52

that advice to be any Secretary of State right

48:54

now. Juliet Arctic the judges I would say judges.

48:57

Faithfully. Uphold the Law. Interpret the laws

48:59

are written right. But. we're talking surgeries. It a

49:01

hundred was a good as one of my things remind. You.think

49:04

the Republicans will watch this and use

49:06

this and. I mean and that's the thing

49:08

that I think a lot of people in

49:10

this is just based on com vs that

49:12

I have is it. It's very intense right

49:14

now and I think a lot of people

49:16

are not thinking pass the next election. They're.

49:19

Thinking Trump is very bad and very dangerous

49:21

and we must stop him. And.

49:24

I understand the impulse and I

49:26

can empathize with it. But.

49:28

It's a little bit like loving executive

49:30

orders. You know that power? a cruise

49:33

to the office, Not the person who

49:35

has it's so you may love Obamas

49:37

executive orders, but you're not an allied

49:40

Trump's And and and so the same

49:42

kind of saying that like this is

49:44

a power that. Is. It.

49:47

If we are setting precedents that we

49:49

may regret, That is what I'm saying

49:51

is if we go full tilt, it

49:53

trump and we decide that we're gonna

49:55

kind of loosely make some plane of

49:57

sort of acceptance he has. He's like,

49:59

especially bad. Then

50:01

how are we not going to have

50:03

the, again, you're setting the precedent. I

50:06

mean, I'll go to this very

50:08

briefly, but the New York indictment

50:10

of Donald Trump, where they

50:12

went out of their way to invent an underlying

50:14

felony that he hasn't been charged with so that

50:16

they could make it a felony, so they could

50:18

get around the statute of limitations. They split it

50:20

into three times, writing the check, cashing the check,

50:23

and sending the check all separate crimes. Every ledger.

50:25

And every time he did it. Yes. And

50:27

so that is to say every monthly check was put

50:29

into three and then multiplied by Oh,

50:32

and then the invoice, and then the ledger entry, and then

50:34

the risky 34. And

50:37

really it's a misdemeanor. So

50:39

people run around screaming, 91 indictments, and I always

50:42

say, yeah, but 34 are really garbage.

50:45

No, I read that one. I was like, that's not

50:47

good. When that came out, I thought, okay, well,

50:49

this is not only, well, I mean,

50:52

it struck me as nakedly political, and

50:54

it seemed manipulative. The statute of limitations

50:56

is there to protect all of us,

51:00

because you can't commit a crime and then have

51:02

to wonder forever and ever if you might. That's

51:06

why there's none for murder. Like if you commit

51:08

murder, we can get you any time. But

51:11

at some point, there's only so far back

51:13

you want to look for misdemeanors and things

51:15

like that. So the statutes of limitations

51:17

are there to protect us, the citizens.

51:20

And so to see a court go out of

51:22

their way to get around it bothered

51:24

me. And

51:27

again, I am not taking aside politically

51:29

here. I'm really, really not. But

51:32

then you see Hunter Biden get this sweet

51:34

deal and they don't prosecute him for a

51:36

bunch of the crimes because they say, whoop,

51:38

statute of limitations is passed. And

51:40

so this is what scares me, is this

51:42

escalation where there seems to be at least

51:45

as far as I can tell, and maybe

51:47

somebody could point to some things to change

51:49

my mind, but it does seem a bit

51:51

like a double standard that you'd expect. We

51:53

have Democrats in power right now, but

51:57

if they can do that to Trump. And

52:00

then do you think there's any Democrat anywhere

52:02

who didn't like file a false report at

52:04

some point? So if you begin with the

52:07

man and look for the crime, you will

52:09

always find a crime. And

52:11

so I feel like by doing that,

52:14

they have now set this

52:16

precedent. And there's nothing to

52:18

stop GOP prosecutors from going

52:21

after every politician, whoever misfiled

52:23

anything. And if you

52:25

have to invent something to get around the statute

52:27

of limitations, we'll do that. But

52:30

starting with that case set

52:32

a really bad tone for the, you

52:34

know, I think the classified documents case

52:36

has real legs. A

52:39

little skeptical of Jack Smith's case

52:41

for January 6th because it relies

52:43

on Sarbanes-Oxley, which is the

52:45

Enron legislation. And

52:48

I don't want to even get into George's

52:51

like taffy stretching of Rico, but if they

52:53

can make it fit under their written law, okay.

52:56

But this kind of trend towards

52:59

disqualifying people through litigation

53:02

and courts taking in secretaries of

53:04

state. And

53:07

I understand why I'm going

53:09

to get hit for this and I know it, but

53:12

there was something in me and I couldn't

53:14

help it. And again, I don't support Trump,

53:16

disclaimer, disclaimer, disclaimer, but I

53:18

listened to Biden's speech the other

53:20

day and I found it

53:22

kind of alarming. He

53:25

really struggles to speak coherently and

53:28

he drops his train of thought all the time. Okay.

53:31

It happens to me too, but he's the president. I'm not.

53:34

And it happens all the time, but

53:36

he's just up there stoking so much

53:38

anger and rage and screaming

53:41

that, well, he can't really scream, but

53:43

he said, democracy is on the ballot.

53:45

And my immediate thought was, and Trump

53:48

isn't. I mean, and not, and

53:50

that it's not, again, not because I support

53:52

Trump, but like, are you going to run

53:54

as the party, like wearing the mantle of

53:56

democracy and we must save democracy by removing

53:58

people from ballots? Yes. The only

54:00

other time I'm aware in American

54:02

history when people have been removed

54:05

from ballots is that 10 southern

54:07

states ahead of secession removed

54:09

Lincoln. Is that really

54:11

where we're going to be? Is that what we're

54:14

emulating here? Is that like they thought Lincoln was

54:16

dangerous, so they took him off the ballot and

54:18

then when he won they seceded. So

54:22

it's a little alarmingly resonant

54:24

in that sense. But

54:27

all of that aside, I think

54:29

if we can get back to section three here because

54:31

I don't want to go too broad, I'm sure

54:34

your audience would prefer that as well.

54:38

I just feel like this is, and it's hard not

54:40

to see it as part of like a broader pattern.

54:43

There's just so much going on with Trump right now.

54:46

I'm emphatically in agreement with everything you just said. I

54:49

read the indictment against Trump in New York. I had

54:51

the exact same thoughts. I

54:53

read that as naked partisan opportunism. Oh yeah. I

54:55

think the guy that brought that against Trump, I

55:01

think the logic of the district

55:03

attorney that did that, the prosecutor who did that was,

55:05

I am going to have a standing ovation

55:08

in every steakhouse in New York. I think that's what he was

55:10

thinking. That

55:14

indictment was so weak. I also think the amount

55:16

of things trying to throw at Trump, the

55:19

subsequent indictments, if you're going to try to bring

55:21

down a presidential

55:23

candidate, you have to have

55:25

an extremely compelling easily understood

55:27

court case that the average American can look

55:29

at and go, yes, he broke the law.

55:32

He should be in jail. If you're going to do

55:34

a bunch of weird hair splitting,

55:39

fun house mirror retcon somebody into it stuff,

55:41

all that's going to do is feed into

55:43

the Trump narrative, which I now think has

55:45

some traction to it. Unfortunately, yes. There's political

55:48

targeting going on. Yeah. They've

55:50

lent some credibility to that argument.

55:53

That's unfortunate in my mind. I wish they had

55:55

not done that. I wish they

55:57

had not done anything. I mean, and again. Like,

56:00

let's not pretend that the city of

56:02

New York was just suffering because for

56:05

all these years Trump had gotten away

56:07

with the mischaracterizing his payment to his

56:09

mistress. He was the penguin of that gossip.

56:11

Right? He's nearly taken down

56:13

the city by not reporting that payment to

56:15

Stormy Daniels. I

56:17

mean, there was no urgency in that case. It was

56:19

the opposite of urgent. And

56:22

so in doing all of

56:24

this, I

56:27

fear they've just made Trump stronger. And

56:31

again, open Pandora's box, because I think you're absolutely right. This is

56:33

one of the short-sightedness of a

56:35

lot of these things. Like, kind of

56:37

a ... This is not

56:39

a race to the bottom situation, but it is

56:42

the kind of weird if

56:44

this, then that phenomenon that I noticed. So

56:46

like back in 2020, and

56:48

I've been consistently of the opinion that Biden won

56:50

2020, I'm not Oh,

56:54

Heaton, there was massive fraud. In the wake of 2020,

56:57

my Democrat friends, who

57:00

I agree with that Biden won, would

57:02

go any type of

57:05

voter security legislation on the books is

57:07

a naked attempt to disenfranchise black people.

57:09

There is no voter fraud in America.

57:12

I would go, do we

57:14

both agree that Trump just tried to steal the

57:16

election? He absolutely did. Republicans want to steal elections.

57:19

They want to steal elections. But

57:21

they would never commit voter fraud under any circumstances. This

57:23

is what we're thinking is that they would absolutely 100%

57:25

subvert democracy. They don't give

57:28

a shit about democracy. They will subvert democracy,

57:30

but voter fraud is a bridge too far. That

57:34

doesn't make any sense to me. Yeah,

57:36

I'm with you too. The political ramifications of this, putting

57:38

on my political hat, putting on my philosophy hat, I

57:40

1,000% agree with you. It's

57:43

policy too. This is not a good way to run

57:45

our elections. We don't want that. I

57:50

negated this argument earlier. I think

57:52

the Article 14

57:54

of the Constitution is anti-democratic. There's lots

57:56

of anti-democratic stuff in the Constitution like

57:58

individual rights. There

58:00

are bulwarks put against what the masses

58:02

can do. Yeah, we can't

58:04

vote away your right to speak or have

58:07

podcasts. That being said though, if you are

58:09

going to run as the party of democracy,

58:11

talking politically and philosophically now, I think you

58:15

have to accept that the people

58:17

make good decisions and it's your job to

58:19

convince them that he's a bad guy rather

58:21

than legally negate them. Exactly. And

58:23

I think that's where this should play out.

58:26

And honestly, I think this is consistently kind

58:28

of the libertarian position on this. It's like,

58:30

yeah, Trump is a bad person and it

58:34

should not be president, but that really

58:36

is something for the electorate to decide.

58:39

And- Democracy means the people get what they deserve good

58:41

and hard. I know, exactly. And that's

58:44

the thing. And so there's something

58:46

about like if he had been committed

58:48

of insurrection or if he had like summoned

58:51

an army and took arms himself and stormed

58:53

the Capitol himself, I think it would be

58:56

very clear. We would not have to debate

58:58

this. That would be so clear. But here's

59:00

the other thing. They've

59:02

charged him with everything they can

59:04

think of, but not insurrection. And

59:08

that suggests to me that they can't prove it.

59:11

Or wouldn't they charge it too? That's a very

59:13

good point. Yeah, good point. And I

59:15

think that the reason they didn't is

59:17

because, and I think Trump for all

59:20

the bad attorneys he has maybe, I

59:22

don't follow his legal team the way...

59:25

I think the people who know the most about

59:27

Trump and his inner circle are the people who

59:29

oppose him at this point. They follow

59:31

that very closely. Okay. Hey, so I'm

59:34

good. I'm with you on all of this. As

59:37

I said, I think the strongest points that were made

59:39

in the Colorado case on the majority side, they

59:41

had a compelling linguistic argument in

59:43

favor of insurrection. The dissenting argument

59:45

I thought had... The dissenters

59:47

didn't really try to say he didn't commit

59:50

insurrection. No. That was

59:52

really doubled down on due process. And

59:54

in the case of ambiguity, defer to

59:56

Congress. That was their position, which I

59:58

think is very compelling. What do

1:00:00

you think is going to come up before the Supreme Court? What is

1:00:02

this going to hinge on for them? Okay, well,

1:00:04

they're being presented with several

1:00:07

questions that they may or may not answer. Now,

1:00:11

as to the level to which they're going

1:00:13

to like venture into this election,

1:00:15

and I hate to have the Supreme Court involved at

1:00:17

all, I think it's a recipe for disaster, but I

1:00:19

don't see any way around it at this point. They're

1:00:21

going to have to weigh in on several things. If

1:00:25

they just decide he's not an officer

1:00:27

under the way the Constitution is written,

1:00:29

it might make

1:00:31

people cranky, but it

1:00:33

gets them out of going yay or nay

1:00:35

on insurrection. And they

1:00:37

may not really want to touch that. They'd rather do

1:00:40

the technicality card. I mean,

1:00:42

this is the Roberts Court, right? Well, he's

1:00:44

also really big on precedent, and I think

1:00:46

he's really big on precedent. And if the

1:00:48

only precedent we have is that it's

1:00:50

not self-executing, they could find that

1:00:52

it's not self-executing. And that

1:00:55

if Congress would like to pass a

1:00:57

law clarifying how to apply Section 3,

1:00:59

they're welcome to do it, but

1:01:02

they haven't done so thus far. So they may

1:01:04

decide on that. The

1:01:06

odds of them getting deep into the

1:01:10

stuff about whether or not he committed an

1:01:12

insurrection, I doubt

1:01:14

they'll delve deeply into that, but they might. It's

1:01:16

going to be really interesting. I'm hoping for like

1:01:18

a 9-0 opinion. I

1:01:22

regard to how they rule. I hope for

1:01:24

the court's sake it's a 9-0 because if

1:01:26

it's not, it's going to be interpreted as

1:01:29

nakedly partisan however it goes. Exactly. And

1:01:33

that's another thing that worries me is there's been

1:01:35

a lot of- You've got one branch left,

1:01:37

anybody respects. Nobody respects them anymore. They're

1:01:39

taking that one down too. Just

1:01:42

me. It's just, why

1:01:44

don't we do- Whenever I

1:01:46

see Brett Kavanaugh walk down the street, I

1:01:48

go, good job there, fella. And

1:01:50

then when I go do D&D with Kagan, I'm

1:01:52

like, I think you're doing a sterling job. Last

1:01:54

Man in America lacks the court, but you're the

1:01:56

two branches talk. I support the court. I hate

1:01:58

to see them attack the- Are you know I

1:02:01

don't give a crap who rides a super yacht? I'm

1:02:03

sorry, I just can't get upset about that. Understand the

1:02:05

some people can and it's not a debated like a

1:02:07

half. but. He.

1:02:10

You. Know that given that the court is under

1:02:12

such pressure right now, because there has been

1:02:14

so as pressure on particularly on Thomas. And.

1:02:17

Thomas entitled because he married Ginny Long

1:02:19

for Trump ran for office of course,

1:02:21

but because she's a Trump or. He's

1:02:25

like Pain of Guilty by Association

1:02:27

says yes. I am nervous about

1:02:29

how the country will respond to

1:02:31

what the court does, especially if.

1:02:34

It split along party lines. I think

1:02:36

it could be a could get bad

1:02:38

and your prediction is that be an

1:02:40

easy way out of. this would be

1:02:42

to use of very specific definition of

1:02:44

why they're here. is not an officer

1:02:46

or it's not self executing for the

1:02:48

hundred Nasa define and so well. I

1:02:51

will say I know more about this

1:02:53

case and about the ballot issues that

1:02:55

Trump is sliding out in court and

1:02:57

I. Feel. Less ambiguous and

1:02:59

smarter for having spoken to you. Thank.

1:03:01

You on a gorgeous. It is always a pleasure.

1:03:04

And. Are hidden. Okay,

1:03:06

gang do feel like you understand

1:03:09

the issue better, but if you're

1:03:11

at a barbecue or a cocktail

1:03:13

party where a wide swath and

1:03:15

this topic comes up, you feel

1:03:17

you could weigh in on it

1:03:20

better than you did an hour

1:03:22

ago. Maybe impressed those ladies were

1:03:24

husband's Either way, either way, Also,

1:03:27

I want you to think about what you

1:03:29

just her, the conversation just heard and I

1:03:32

want you to think about how that. Is

1:03:34

being treated on national television?

1:03:37

Just compare what you heard

1:03:39

with how it's presented on

1:03:42

Msnbc, Fox, Cnn. did

1:03:45

we do a better job

1:03:47

where we more insightful for

1:03:50

real us partisan higher fibre

1:03:52

well well here so please

1:03:55

consider supporting the political

1:03:57

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1:03:59

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1:04:36

heaton thanks that's

1:04:39

the show uh... thanks for listening thank

1:04:41

you on a course for coming on

1:04:43

to discuss the lol thank

1:04:46

you eric stipe who edited today's episode

1:04:48

and thank you patrons who make it

1:04:50

all possible until next time i've

1:04:53

been andrew heaton and so have you