Senator Colorado banned Donald Trump from the ballot. A bunch of other states decided they wanted to do the exact same thing, and now this is all going to the Supreme Court. We thought it was appropriate to spend some serious time on the podcast today talking about this issue.
Why was Colorado chosen to be the case that would go to the Supreme Court over the other states that had also done the same thing, because Trump's team and they had options here, Why was it Colorado and what does this mean moving forward?
Well, Colorado was really the only option. We have two decisions. We have Colorado and Maine. Colorado was a decision from the state Supreme Court. It was a decision that was four to three, and a decision from a state supreme court can be appealed to the US Supreme Court. What happened in Maine was it was a decision from the Secretary of State. So it was an individual It was not a court that decided it was the secretary of state. Secretary of State is not a lawyer. She is not
an elected official by the people. She is elected by the state legislature.
In Maine. She made a determination.
The next step in Maine is for that to be challenged in Maine.
Judicial court, in state court.
Okay, so you can't appeal from the main Secretary of State to the US Supreme Court because the only option was in Colorado was the only option. Appeals to the Supreme Court as a general matter, lie either from state supreme courts or lie from federal courts of appeal. And so the way the courts work, you have a federal system and you have a state system. Typically both are set up with trial courts, intermediate appellate courts, and then
the Supreme Court. And so in the state you have typically a trial court, intermediapellate court, the Supreme Court, and from the state supreme court you can appeal to the US Supreme Court, although you can only appeal a question of federal law. So Colorado can determine Colorado's state law the Supreme Court, and the US Supreme Court doesn't determine
Colorado state law. But in this instance the question is overwhelmingly it is entirely one of federal law, namely what the Fourteenth Amendment to the Constitution means.
So the Supreme Court to be clear, and this is where it's gotten complicated. When you go before the Supreme Court in this case with Colorado, the argument that's going to be made. Is it going to be about whether there was insurrection and he was in charge of that insurrection,
therefore he should be disqualified with a fourteen amendment. Or is this about a state overstepping and saying we believe that he was a guy that was involved in insurrection, so therefore we can take him off the bout or is it really a combination of both.
So it'll be both, and let me break down. Look unverdict. When the Colorado decision came down, when the main decision came down, we said on this podcast, I predicted the Supreme Court would do exactly what it's done, that the Supreme Court would take the case, and that they would take it quickly. That is what has happened. So they've taken it.
Now.
They've set the oral argument for February eighth, so that is exceptionally fast. Generally, when the Supreme Court takes a case, you have months to file briefs and the oral argument is six months down the road. In this instance, the oral argument is a month from now. The parties will file their briefs in the next couple of weeks. So they are furiously writing their briefs right now.
And when you say the party is to be clear, that is the Colorado Attorney General and her staff is going to be filing on their side. And then who's going to be filing this is it Trump's personal legal team or is in the campaign.
Out well, So the Colorado Republican Party has filed an appeal, Trump will certainly file, will participate in it. You will have other meeky friends of the court. And what I want to do for this podcast is two things. Want to tell you what I think the Court's going to do and why. But two then I want to just explain the details of the legal arguments that are playing out, because this is complicated, it's hard to understand, and it's
important to understand. I believe the US Supreme Court is going to reverse the Colorado Supreme Court, and I think there is a very good chance that the U. S Supreme Court will do so unanimously. Really, I think if I were to put the odds of a unanimous decision, I'd say the odds of unanims decision are sixty to seventy percent.
You say that, and there's gonna be what the listener, they are gonna be shocked. I'm one of them. And here's why I feel like I've lost some faith in the Supreme Court, specifically over Roe v. Wade and the leaking of that decision, and also the fact that clearly there had to be people that knew who leaked it, and we still haven't found out who the leaker is. There's no indication we ever are going to figure out who the leaker is, which is I think also shocking.
So when you come back and you say nine to oh, tell me why you have that much faith.
So I think a number of things.
I think number one, the Chief Justice John Roberts is going to be deeply invested in wanting this to be unanimous, in not having the Supreme Court appear partisan. Every justice is going to be aware this is a decision that's going to be watched by the country and watched by the world, and every justice is aware of not wanting the Court to appear like a political or partisan body. John Roberts, whom I know very very well. As you know,
I clerk for Chief Justice William Rehnquist. John Roberts clerk for Chief Justice Renquist as well. He's been a friend of mine for thirty years. He cares deeply about the institutional legacy of the Court, and he is going to be deeply motivated a unanimous decision, I think he will believe, and I think all of the justices will believe. Is the best for the Court and the best for the country.
Is that because a precedent moving forward that ten years, twenty years from now, we could see this happen again, where a political party decides we're just going to try to throw a guy off the ballot.
It could be a Democrat next time.
Look, the precedent on this is terrible and what the Colorado Supreme Court did was lawless, and we'll walk through it that in a minute. But here's what I think will happen. So, by the way, to give you a sense of the scope of it, if the US Supreme Court affirmed the Colorado Supreme Court decision, Donald Trump would be struck from the ballot. And if that determination was made, it's not binding on the other states, but the other states within very short order, Trump would be removed from
the ballot in all fifty states. So if the Supreme Court decided fifty.
So not just Democrat states or there's a Democrat attorney general there. You're saying all over the country.
The only ground on which the US Supreme Court could affirm the Colorado Supreme Court is to conclude that Trump is barred from running for office because of the Fourteenth Amendment, Section three the Constitution. If the Supreme Court concludes that, every state will remove them from the ballot, and you will have courts order every state to do that. So that would be a nationwide decision. Now, it would also be a decision that would be so profoundly anti democratic,
and I think it would rip this country apart. And the Court doesn't want to do that. You know, there's a rich irony democrats. What they tell you, what they accuse their opponents of doing, almost inevitably, is what in fact they are doing. Every Democrat right now is beating their chests saying we must save democracy. Joe Biden just gave a ludicrously self righteous speech saying we must save democracy,
by which he means elect democrats. And nothing saves democracy or defends democracy like throwing your opponent off the ballot, so to stop the voters from voting for him. Understand why the Democrats are doing this they're afraid the voters will vote for Donald Trump if he's on the ballot, and so they're trying to prevent democracy. I don't think the Supreme Court is going to have any interest in playing a part in preventing democracy, in stifling the right
of the voters to decide. And here's how I actually think it will play out. I think John Roberts in particular, is going to go to Elena Kagan. Elena Kagan is the smartest of the liberal justices. She was the dean of the Harvard Law School, she was the United States Solicitor General. She is a very very smart, talented lawyer. And I think Roberts is going to try very hard to make the personal case each of the justices that the Court needs to be united. By the way, that's
not unprecedent. If you look at Brown versus Board of Education, which was the case in nineteen fifty four that struck down segregated schools. That decision was unanimous. Earl Warren was the Chief Justice. He understood that that decision was a big,
big deal. Segregated schools had been allowed under a decision called Plessy versus Ferguson, a terrible decision, and Brown overruled Plessy and Earl Warren thought it was critically important that the Court speak unanimously that there'll be no division on a Christian that would impact every American. I think this is of a similar magnitude, and given the political context, I think every justice will feel an urge to have the Court not appear to be a political branch.
Now.
You mentioned, by the way, in a previous verdict, that the justice don't necessarily talk a lot to each other, almost never.
They operate as almost like independent law firms. As you described it.
This seems different in this scenario where you're saying there will be almost in essence, like a lobbying for the sanctity of the court in essence and for the country, like, hey, we need to all get together on this one.
This is different and.
You believe that's probably how it's going to play. And that doesn't happen very often, correct.
It happens very very rarely. In this instance, I think it was a no brainer the Court would take it. It didn't surprise me at all, and by the way it was going to be argued on February eighth, we will get a decision.
I think by the middle of February.
We'll have a decision within a week or two or three.
Who decides at the Supreme Court to take a case quickly and walk us just through that?
Does that have to be a lot of justices.
So what was filed is what's called a petition for rid of cercherari. That is a request for the court to hear an appeal. The Supreme Court is unusual in that many courts of appeals, most courts of appeals, you have an appeal by right. In other words, if you file an appeal, the court has to take it. If you have a case in federal district court, you're convicted of a crime, or you have a civil lawsuit, you assue me and you lose, you can file an appeal
as of right. And if you're in federal district court here you would appeal to the Fifth Circuit Court of Appeals and the Fifth Circuit will take that appeal.
It has no choice.
The Supreme Court has what's called a discretionary jurisdiction, which means it chooses which cases to take. In a typical year, they are about eight thousand wow. Cert petitions is what they're called petitions for sorcer or. Everyone calls them cert petitions. They're about eight thousand. The Court typically takes about eighty, so it takes about one percent of the appeals it says yes. It takes four justices to vote to grant cert.
I believe this case was a no brainer. I think all nine of them agreed we needed to take it. I don't think they hesitated on, of course, whether or not one of the two major party nominees is excluded from the ballots and the voters are prevented from voting under the Constitution. It is difficult to imagine a more consequential question and a question that demands the Supreme Court get it. Look, I don't think the Court was eager to get into this issue at all. If Colorado hadn't decided.
This, they went to have touched it.
The Justices are not looking to opine on this, but once Colorado ruled, they had no choice, and they had no choice but to do it quickly.
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Call eight and eight six seven five forty nine for details about credit costs and terms. What was the mentality of the court when you were part of the Bush team in Bush v. Gore when they took that pretty quickly as well, So that was that was really fast, seems a lot like this timeline. They weren't eager to get involved in that either, if I remember correctly, walk us through that comparison.
Yeah, So Bush versus Gore, I was part of the legal team representing George W. Bush in the year two thousand. That entire legal proceeding took thirty six days, and I was down in Florida and Tallahassee as a baby lawyer. I was twenty nine years old, but part of the legal team, one of the most junior members of the legal team, but part of the legal team litigating in that particular case. We went to the US Supreme Court twice, and in those thirty six days, the Supreme Court heard
two appeals. Those two appeals were briefed, they heard or arguments, and they issued decisions, and both of those played out within the thirty six days. So the court can move exceptionally quickly if there is an urgency to do so.
It was interesting in Bush versus Gore there was a divide of opinion among the lawyers representing Bush as to whether the court would take the case really, and the divide, by and large was the divide between those who had clerked at the court and those who had not clerked
at the court. Almost without exception those of us who had been law clerks at the Supreme Court believe the Court would take the case that even though in two thousand the Court was not eager to get in the presidential race, it required there was a responsibility for the Court to resolve it.
I think that's exactly what they feel here now. Given that.
If it's going to be a unanimous decision, and as I said, I think it is more likely than not that it is, then the Court is not going to rule I believe that there was not an insurrection, Like that's one ground you could reverse as say there was not an insurrection.
Why is that going to be the case?
Look, I don't think there was an insurrection as a matter of law, and we'll talk about that in a second.
But I don't think the court will rule that.
Why because I don't think Kagan or Soda Mayor or Kotanji Brown Jackson would rule there was not an insurrection. So if it's going to be unanimous, they're going to have to find a way to resolve it that is narrow, but that reverses it and brings everyone to go. And so here's the basis. I think they will resolve it. I think they will resolve whether or not there was
an insurrection. I'm willing to bet right now there will be a sentence in the opinion that says, we express no opinion on whether or not an insurrection occurred on January sixth.
So they're gonna say, that's not what we're here to do, that's not what we're deciding.
We're not part of that debate.
I think what they will say instead is, however, the determination of that matter cannot be made without evidence, without due process, without a judicial proceeding, and in particular the ground that I think the court will go to. So there's a federal statute. So here's what eighteen USC. Section two three eight three says. It's entitled rebellion or insurrection.
Whoever insights, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort there too, shall be fined under this title or imprisoned not more than ten years, or both, and shall be incapable of holding any office under the United States. Now notice the penalty and capable of holding any office. This is a statute that is codifying the Section three of the fourteenth Amendment,
and it is insurrection. Now, interestingly enough, Donald Trump, it seems, has been indicted all over the place by a bunch of very partisan, over zealous prosecutors who hate the man. And you know what, he hasn't been indicted for anywhere insurrection. Jack Smith, who is javert to Trump as Jean Valjean Jack Smith hates Trump and wants to get him no matter what, in prison for life senence. And Jack Smith
is in decent with a very liberal judge. He's got a DC jurypool that is ninety four percent Democrat, he's got the most favorable environment in the world. And you know what he hasn't done in indicted Trump for insurrection. And the only reason he.
Has to say so, the question is why why?
Because there's no remote evidence that would prove that Trump had engaged in insurrection. Donald Trump sent some tweets and stood up and gave a speech in which he told.
People be peaceable, be peaceful.
There there, you cannot prove as a matter of law that telling people to be peaceful is engaged in insurrection. So understand, when Democrats go on TV and say it's an insurrection. It's an insurrection when when reporters go on TV and say that, they mean that as political rhetoric. Insurrection is a legal term, and there's a reason no one has charged him with it because you couldn't pass
the laugh test. So what I think the Supreme Court would say is, if you want to bar Trump from being on the ballot, charge him and convict him with insurrection. Jack Smith brings an indictment, they get a conviction, that conviction is upheld on appeal.
Then look, then that's a different argument. Right, he's been convicted of it.
Then it's a slam dunk if Trump were convicted of insurrection, if anyone were convicted of insurrection, they would be barred from being on the ballot.
When you look at Jack Smith, and I got to go back to this because you talk about these guys and all of the different things they've gone after Trump, and to remind people that the entire country, not one of these over zealous prosecutors has gone after Trump for insurrection. Do you think Jack Smith probably sent in room with a bunch of Democrats and said, absolutely.
Is there any way we could get him?
Is it possible if we were going to try the case, how would we try the case? And then every time they went back to Donald Trump's own words of him saying go peacefully, and the tweets of him saying go peacefully, have a peaceful day, and the fact that he also said he offered up the National Guard, which Democrats Pelosi said no to. So if you're trying to have an insurrection, would you try to do that as well?
And understand looks Section three the Fourteenth Amendment was passed in the wake of the Civil War. It was designed to stop people who had fought for the Confederacy from serving in Congress, from serving an elected office, from serving
in government. If you were so understand when they were writing insurrection, they were thinking about the Civil War now, And we could in a minute go into and we may even do an entire podcast, a separate podcast on some of the judicial precedent on a post civil war. But a potential response to what I just said that the court would say, if you want to bar Trump from the ballot, prosecute him and convict him of insurrection.
A potential response was well, post Civil War, the Civil War officers who were banned, they were not always barre prosecuted for insurrection. That's true, but I will say this, and it varied, but there was zero dispute that an insurrection had occurred. The predicate. You want to know what an insurrection is, Well, the Civil War lasted four years
and six hundred thousand Americans were killed. That's an insurrection. Yeah, Like they brought out cannons, they shot and killed each other and had a war for four years, and it's the bloodiest war in American history. That's what they were talking about when they said insurrection, not a riot where some individuals committed individual acts of violence for which they were prosecuted and are serving jail terms. That is like the analogy is to the Civil War, and it's why
no prosecutor can can bring this case. All right, let me walk through some of the arguments that are at play. So here's what Trump argues to the Supreme Court in his cer petition. First, he argued that the Supreme Court took Congress's authority to resolve questions of presidential eligibility, that it is a political matter to determine rather than a legal question, whether he is eligible under the Fourteenth Amendment.
And actually in making this argument, he mentions President Obama and disputes about whether he was eligible to be president. He mentions Senator McCain when he ran for president, disputes about whether he was eligible, and he mentions me, actually, and there were disputes. There were challenges when I was running for president. There were legal challenges that I was not a natural born citizen. I was, in fact a natural born citizen, because what the Constitution requires is that
you mean natural born. I was a US citizen even though I was born in Canada. My mother was a US citizen at the time of my birth, and so I was a citizen by birth. The process of being born is what made me an American citizen. I was never naturalized. But there were a bunch of lawsuits that were five against me when I ran. We defeated them all, and the courts threw them out, and we defeated them all.
And what Trump said is, look, if there's a dispute, that's ultimately a question for Congress to decide, not the court. So that's argument number one. That's a real argument. A second argument is that Section three does not reply to the office of the president. This is a real argument, but I'd be surprised if the Supreme Court agrees with this one. But let me give you what his basis is.
Trump argues it based on three different grounds that if you look at the phrase officer of the United States, it appears in three constitutional provisions other than Section three the fourteenth Amendment. It appears in the appointments clause, which requires the President to appoint ambassador's, public ministers and consuls, justices of the Supreme Court, and all other officers of.
The United States.
And he points out, well, the president obviously can't appoint himself, so officers are something different than the president. Likewise, the commission's clause requires the President to commission all the officers of the United States. Again, the president doesn't commission himself. So the argument is officers of the United States are different from the president, which is a constitutional creation. And then also the impeachment clause, the clause that verdict started with.
The impeachment clause says, quote, the President, vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treeson bribery, other high crimes and misdemeanors, and so His argument is if the president was an officer of the United States, there would be no need to specify the president, vice president, and all civil officers. So that's the argument. There's a textual matter. It's not a crazy argument, but I would
be surprised if that persuades the court. The third argument he makes is that as president, he took a different oath than officers of the United States, and that demonstrates he's not an officer. In particular, Section three bars from office those who have taken an oath to quote support the Constitution. And the president's oath of office is specified in the text of the Constitution and it is not,
in fact an oath to support the Constitution. It is an oath to quote, preserve, protect, and defend the Constitution. I'm not terribly persuaded by that argument. It is technically right that the word support is not there, but.
That would be one of the weaker arguments that they would be making of their options.
Yeah, I would be surprised if the court grounded it on supports different from preserve, protect, and defend.
By the way, when you go in there, as you're laying out these arguments from his team in the oral arguments. Would you make all of these or do you choose the one you want to make that you think is the one that they're willing to probably side with the most. Do you pick your best or do you make all of these saying here are the reasons why we think this is wrong, and these are the different options.
How does that work in the oral arguments?
So it varies strategically. Typically, the way people will do it is they will make they'll make all the arguments they have reasonably available to them in the briefs.
The briefs are written documents.
They are typically in the US Supreme Court emerits brief is tip typically fifty pages long, and it's a booklet. It's a booklet that is oh about three fourths the size of a sheet of notebook paper. And so it's a bound little booklet fifty pages long. And in your written briefs, I would expect them to make all of these arguments in oral argument, A good oral advocate is going to prioritize it.
Is that the same for good on the spring where it works?
Those books that you're talking about, is that the same book that you have for every justice?
Or can you taper them?
None of different you file.
Each side files uh the petitioner will file an opening brief that is fifty pages, the respondent will file a response brief that is fifty pages, and then the petitioner gets to file a reply. So there'll be three briefs filed by the parties, two by the petitioner, one by the respondent, and then amiki amik is Latin for amicus kurei which friend of the court. And there will be other parties that are a mek file briefs urging the court to do something.
But an oral argument.
A good oral advocate will prioritize the best arguments. And one of the things what really differentiates the best oral advocates from ones that are merely okay are their ability
to read the court and pivot. So what I argued nine cases at the court, what I very much tried to do is watch and read the justices, and if there was an argument that I was making, I would have thought through what are my best arguments, and so I'd come in with a pretty clear idea, all right, here's the ground on which I think I can win
for my client. But in the course of the questioning, if I see an opening for a justice whose vote I need to get, and maybe I think arguments one and two are really good and one justice likes argument three. A good oral advocate will pivot based on where the justices are and read the justices. And by the way I would expect, because I believe John Roberts passionately wants this to be unanimous, I would advise Trump's attorney to
listen to John Roberts very carefully. So before John Roberts was Chief Justice, he was a Supreme Court advocate, and he was I think the finest Supreme Court advocate of his generation.
When you say advocate, what does that mean?
Lawyer?
He argued in front of the Spring Court he was if if you wanted to go to the Supreme Court, have a good chance of winning, this is a guy you'd want to be making the arguments in your behalf.
That's your definition of an advocate.
So John Roberts was.
He was the Deputy Solicitor General, the principal deputy Solicitor General under George Herbert Walker Bush so Bush forty one, the first Bush. He was Ken Starr's deputy. So Ken was the solicitor General. John Roberts was the deputy Solicitor General Principal Deputy. And from there he went to Hogan and Hartston, which is a DC law firm, and he led their Supreme Court practice. And in Bush versus Gore, John was part of our legal team. I recruited John.
I called John on the phone from Tallahassee and said, John, we need you down here, and he flew down and joined our legal team. And so Bush versus Gore. I litigated it alongside John, worked on the briefs with him. Ted Olsen did the oral arguments, but John was part of the mooting team that was asking Ted the questions
and preparing Ted for the arguments. When I was clerking for Chief Justice Renquist, my co clerks and I we asked the Chief We said, all right, you see lots of lawyers, who's the best Supreme Court advocate in the country? And Rehnquist laughed and he said, you know, I think I could get a majority of my colleagues to say John Roberts is the best Supreme Court advocate alive.
Wow.
And I agree with that.
I've seen John argue multiple cases, and I think it was hands down like he was just when I argued cases. I tried to emulate John Roberts' argument style because he was so good. And so when I was arguing cases, Now, look when I started arguing cases when Renquist was still chief, and then I argued a number of cases with Roberts's Chief And I'll tell you what I did when I was arguing with Roberts's chief is I'm looking at the best Supreme Court advocate alive who have to be sitting
in the center seat. And part of what made him so good is he was more skilled than anyone else at reading the other justices and the swing justice in particular, back when it was Kennedy and O'Connor who were the swing justices, John Roberts was excellent at it. So in the argument, I would pay very close attention to Chief Justice Roberts because if he laid out an argument, he's telling you, I think this is the theory that gets Kennedy and O'Connor, and so I would pivot very much.
And my advice for Trump's lawyer is pay really close attention to what Roberts is saying, because he's not just asking for himself, he's asking on the theory he thinks is most likely to unify the.
Court and get you to that nine zero unanimous decision. Yeah, how long are they going to have to argue this? I mean when you talk about oral arguments, is it is it ours?
Is it ninety minutes? What are we talking about?
So normally an argument is an hour. So normally each side has thirty minutes. They can extend it. They might extend it in this instance. I don't know, but normally an argument is an hour. And the bulk of the argument, by the way, is questioning from the justices. So you get up and the justices are asking you questions, and that it's a back and forth. It's not a mile. Is a statement there is? There didn't used to be.
So the old way they did Supreme Court arguments was you would start off, you'd stand up and you'd say, mister Chief Justice, and may it please the court? And every argument begins with that, and you would sometimes get less than a sentence into your argument and a justice would jump in and pepper you with questions and what made it invigoratings? You'd have a question here, a question here, question here, and it was just non stop, and you had to be quick and fast and anticipate justices who
disagreed with your position. They're trying to ask you questions to expose the weakness of your case, and you had to anticipate it. They have post COVID, they regimented it now, and I really don't like how they do it now. But they now have a period of questioning from each justice, and so it's a little it's not the wild face.
It's almost like Congress, where you have five minutes or you have three minutes, and then you go in this order. Whereas before it could be a conservative just as to your question, followed up by a liberal justice to your question, followed up by another justice asking your question.
It was it was control chaos.
It was, yes.
But it is more regimented now. But I would say I would expect the chief justices questions to lay out in the questions what he think thinks is the best theory to bring the court together. All right, let me give you the rest of Trump's arguments. Fourth argument he makes is that Trump did not participate in an insurrection, because an insurrection, as understood at the time of passage of the Fourteenth Amendment, means the taking up of arms and waging war upon the United States. Now, I think
that's absolutely correct. I think it's ludicrous to say that Trump engaged in an insurrection based on the facts. I also do not believe the Supreme Court will conclude that because you can't get nine justices for that, and I think they will want unanimity, and so they'll say, look, my guess is we might get a concurrence from one of the more conservative justices saying this clearly was not
an insurrection, but we might not. And by the way, look, I said that there's a sixty to seventy percent chance of it being unanimous. That means there's a forty to thirty to forty percent chance that the liberal justices just hate Trump so much they can't bring themselves to do it.
And what would that decision look like.
I mean, would it be one or two that say, hey, just for the principle and said nine, we're going to go seven to here, or even go sixty three.
Look, sixty three would be heartbreaking.
It would do real day in this country to the Court and to the country if it just broke on partisan lines. If the three liberal justices dissented and the six more conservative justices were in the majority, I think that would be terrible for the court, and I really hope it's not so. The fifth argument that Trump made is that the Elector's Clause requires states to appoint presidential electures quote, in such matter as the legislature thereof may direct.
In other words, the courts can't intervene in that. The sixth argument is that Section three cannot be used to deny a candidate access to the ballot. It can only be used instead to prevent someone from holding office. So all of those are arguments, as I said, and you
know it's and it's horse. By the way, the argument that I think will will fly is the argument that it was not adequately determined that Trump had participated in insurrection, not that there wasn't an insurrection, but that the means of ascertaining that.
When that goes back to Jack Smith and what you're talking about, he was never charged, much less convicted, and it didn't work its way through the court system. And so if you believe that Donald Trump in fact was a part of an insurrection, then charge him with it, get him convicted of it, then you have that different argument goes back to what you were saying at the very beginning.
Yes, and I will say look, one of the questions that will be front and center litigated is whether Section three is self executing. Self executing means a provision of the Constitution that has force of law, that doesn't need Congress to pass legislation to enforce it, and that will be actively disputed. And in the Colorado Supreme Court, one of the justices, Justice Carlos Simour, dissented on this point.
And what he said is that the majority opinion of Colorado stripped President Trump of due process of the due process of law, and he says Section three didn't specify the procedures that have to be followed to be determined whether someone is engaged insurrection. All the Democrats is absurd. It's insurrection. It's insurrection, but that hasn't been determined as a legal matter, and so Justice Samour concluded the Section three is not self executing and requires legislation for enforcement.
And he argued that the lower courts proceeding in Colorado lacked basic discovery, lacked the ability to subpoena documents, lacked the ability to compel witnesses, lacked any time frame to investigate or developed defenses, and lacked the opportunity for a fair trial. And he pointed out that in his view, Section three cannot be self executing because it doesn't provide any procedural guides. For example, Section three the Fourteenth Amendment is completely silent on whether a jury has to be
impaneled or not. Can a judge decide it? Or does it have to be a jury your peer as well? Section three doesn't say it. What's the burden of proof? Is it beyond a reasonable doubt? Is clear and convincing evidence? Is it simply a preponderance of the evidence. Those are very different burdens of proof. Constitution is silence on that. What's the standard of review, what's the standard of discovery, what's the standard of evidence? Is it a civil determination
or criminal determination? None of that is there. And so what he argues is that Congress could pass legislation to adjudicate that.
I'm not entirely persuaded on that.
What I would say is Congress has passed legislation when it's set up a criminal statute for insurrection, that there is a mechanism and it is a criminal trial.
And charge him and charge him. And so you go back to the very beginning of what you said.
No one has had the kons to charge them because they know they would lose.
You could not prove the case in court, which is why instead you have partisan judges or a partisan Secretary of State just asserting it because they believe it is a political matter. Now, on our next podcast, what I want to walk into and go into is there is some history and some Supreme Court history on the Fourteenth Amendment in section three right after the Civil War and Jefferson Davis in particular. So I'm going to give a
tease for our next podcast. I'm going to walk through what happened with Jefferson Davis under the Fourteenth Amendment Section three. But let's be clear, Jefferson Davis, by any measure, engaged in dramatically different conduct leading the Confederacy in way aging war with the United States for four years is very different from giving a speech telling people to be peaceful and so. But there is complicated precedent post Civil War. In the next podcast will dive into that.
It's going to be very fun. This is why I love doing this show. I also will get your political predictions. I do want to end with one last thing, just so people have that timeline you mentioned earlier. Supreme Court's going to hear this. When and when do you think we'll have a decision from the Supreme Court.
February eighth is when they hear the oral argument. I think we will get a decision quickly. I think it's possible it could be within days. I think it will be at the very latest by March fifth, which is when the Colorado primary is. And my guess is it'll be a week or two. That's just it'll be as quick as they can write the opinions. But I think they will feel an urge to move quickly.
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You can grab it on YouTube. You can grab it on x you can grab it on Facebook. We stream it on all of those platforms, so you can share this on your social media. Happy new Year from all of us here, and we'll see you back here in a couple of days for basically part two of what's gonna unfold here with the Supreme Court.
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