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LIVE Analysis: Supreme Court Oral Argument on Trump Ballot Ban

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
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February 8, 2024 1:11 pm

LIVE Analysis: Supreme Court Oral Argument on Trump Ballot Ban

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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February 8, 2024 1:11 pm

All eyes are on the U.S. Supreme Court as the Justices just heard oral arguments in the Trump ballot ban case. The ACLJ filed our final brief earlier this week in the case. Will the U.S. Supreme Court uphold the Colorado Supreme Court's decision to ban President Trump from the primary ballot? Will the far Left's 14th Amendment argument prevail in denying Americans the right to vote for the candidate of their choice in the 2024 election? The Sekulow team analyzes the ACLJ's critical case at the U.S. Supreme Court – and much more.

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Today on Sekulow, we have live analysis of the Supreme Court oral argument on the Trump ballot ban. Keeping you informed and engaged. Now more than ever, this is Sekulow. We want to hear from you. Share and post your comments.

Or call 1-800-684-3110. And now your host, Jordan Sekulow. The U.S. Supreme Court right now is hearing the case. It is ongoing as we speak. The attorneys for President Trump have made their initial oral argument. We will analyze that. The attorney for, remember these are the individual Colorado voters who challenged having President Trump on the ballot.

That's Jason Murray and the organization crew is up now. And then you'll have Shannon Stevenson who is the Colorado Solicitor General arguing on behalf of their Secretary of State. You were getting very different arguments. And from even the Trump administration, the Trump campaign attorney, you would hear very different arguments than you would have heard from the ACLJ in our briefs representing the Colorado Republican party, as we're a party as well. And that's been discussed as well. Because again, on a couple of notes, but there's been one issue where again, a Democrat appointed justice, Justice Katanji Brown Jackson, has focused, as we have done numerous times in this show. I want to read it on the brief. That the President is not mentioned in this list. And this list is very specific. And that if he is not an officer and he is not listed, how does this even apply to him?

And she's kind of stuck there. Okay, so we argued that under the 14th Amendment, Section 3, when they list the people that the Disqualification for Insurrection applies to, it does not list the President or the vice President. So here's how we argued it. Number one, the President is not an officer of the United States under Section 3 of the 14th Amendment. The text of the Constitution confirms that the President is not an officer of the United States. The oath that the President takes is distinct from the oath officers of the United States take, further confirming he is not an officer of the United States under Section 3. We then asserted that Chief Justice Roberts, in an opinion he wrote in 2010, said that officers of the United States are not elected. Presidents are elected. Officers of the United States are not elected. That was the fundamental off-ramp for the Supreme Court here. It's almost like a jurisdictional thing. Wait a minute, this doesn't even apply to the President.

And as Jordan said, when you've got a justice who's a liberal justice appointed by President Biden saying, hey, I don't think the President's listed here, but the problem is the Trump lawyers did not want to assert it that way. Now I still think we're going to carry the day here, but do we have time to play it? We do not. We're going to play it after the break. If you've got questions so far, and I would imagine if you're listening to this again, it's audio if you've been watching it on a cable news channel. If you've got questions already now, 1-800-684-3110, that's 1-800-684-3110. Listen, so far both oral arguments, they're getting tough questions.

I think the tougher questions have actually gone to the Colorado. It was that the Trump campaign's attorney, Jonathan Mitchell, was a little bit more aggressive in his trying to kind of, didn't want to ever say yes to a justice. So we call those the softballs that you miss. You know, kind of like the free balls, if you will, when they say, hey, isn't it just this?

And again, he's sometimes given two or three times. Let me tell you what we said. But it does give a very different thing with our brief. Well, because we also, another question that came up, one that just said it's really not self-executing. I mean, there's got to be enabling legislation, and they're not arguing that either. That's why you have other parties represented here. Now, we didn't participate in that oral argument.

You got the Colorado Solicitor General going up right now explaining election law in Colorado, which is fine. But I don't think it's going to be outcome determinant. Having said the differences in the way we approached the case versus the way the Trump team approached the case, I think we're going to win 9-0. And I think Chief Justice Roberts is writing the opinion. I think you're going to see Katanji Jackson-Brown, Justice Jackson. I think she's going to be the vote for this.

I think Kagan is too. I didn't hear a lot out of Sotomayor, but she was concerned too. So I think it's a good start. Folks, your support of the ACLJ makes all of this possible, including the four briefs we filed in this historic case.

So we want to thank you for that. Your support will be doubled if you donate today at ACLJ.org. If you want to talk to us on air on what this case means for your right to vote, give us a call at 1-800-684-3110.

That's 800-684-3110. Welcome back to Sekulow. So right now you've got a few minutes of oral argument going on between the Colorado Solicitor General about Colorado election law.

I think that's supposed to be about 10 minutes or so. And questions about why Colorado can do what they're doing. But main focus is going to be, of course, it started with President Trump's Trump campaign attorney.

And then, of course, the crew, the organization representing the people in Colorado that wants to take President Trump off the ballot. Justice Jackson just said, I mean, like a minute ago, that the language doesn't include President. That's what she was arguing with when the Colorado lawyers were up there. So that is the first argument we raised. The issue that because it's a threshold question, if the President is not an officer of the United States, then the 14th Amendment Section 3 doesn't even apply.

Absolutely. And they all every single justice, I think, jumped on that argument. Even Sotomayor, Kagan, and like you said, Jackson, they were all focused on he's not an officer. And if that's the case, then whether it's self-executing, whether all of that's thrown out the window because it doesn't apply to Presidents. So that would be it. Let me play two bites.

I want to start with 41. And this is Justice Jackson, newest member of the Supreme Court. She has questions about the issue of the whole idea of the officer. In other words, the provision that would disqualify the former President doesn't get triggered if the presidency is not included in that list of disqualified officers for insurrection. Our position is an officer of the United States does not include the President. The Trump campaign hedges on that a little bit, and I think that was not a wise move in my view. But let me play it for you.

It's about a minute and 17 seconds, but here's the first one, then I'll talk about the second one before we get into it. Going back to whether the presidency is one of the barred offices, I guess I'm a little surprised at your response to Justice Kagan. Because I thought that the history of the 14th amendment actually provides the reason for why the presidency may not be included. And by that I mean, I didn't see any evidence that the presidency was top of mind for the framers when they were drafting section 3. Because they were actually dealing with a different issue. The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government. The possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk.

I'm going to stop right there and go back to it. By the way, that is exactly what we argued in our brief at the ACLJ. That this was a restriction on the states because the states were trying to interfere with reconstruction after the Civil War. Very specific to the Civil War. So it was to restrain the states, not to enforce it. Now listen to the rest of what she said. That former Confederates might return to power in the South via state level elections, either in local offices or as representatives of the states in Congress.

And that's a very different lens. If your concern is trying to make sure that these people don't come back through the state apparatus and control the government in that direction, it seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency. Okay, let me tell you something about Justice Jackson here. She's exactly right. That's a textualist response and a historically correct analysis. By the way, so don't start writing, you know, I can't believe you're saying that about a binding point. She got it exactly right. A hundred percent. And I think this case can be unanimous if it's despite the argument, because the briefing on this, ours was crystal clear about what an officer is.

Now, this is the difficulty. Jonathan Mitchell, the lawyer representing President Trump, we represented Colorado GOP. They represent, Mitchell represents Trump. She tells him, Justice Jackson said, I'm surprised at your answers on this. And I'm going to play this for you and then give you analysis. I want you to understand what's going on.

And by the way, I still think we win this probably unanimous on the officer issue. I just am surprised that you would, given the text of the provision and the historical context that seems to demonstrate that their concern or their focus was not about the presidency. I just don't understand why you're giving that argument up. There is some evidence to suggest that. Is there any evidence to suggest that the presidency was what they were focused on?

There is some evidence of that. There were people saying we don't want Jefferson Davis to be elected President. And there was also one of the drafts of Section three specifically mentioned the presidency and the vice President. But it wasn't OK.

I want to stop there. That's called conceding an issue that you should not have conceded. Number one, the historical evidence, which we detailed in our brief at length, we talk about the text and history of the provision. We trace what was said in the debates in our brief that was filed, what they call the red brief, which is the respondents brief, because although there was some early drafts that had President and vice President in it, those were removed. And some members of the Senate, right, some members of the Senate said, I don't like that we're removing it. But the individual said, well, that's not the focus of what we're concerned with. Right. That's not the concern.

This is not about removing future Presidents. We're not it's and again, it goes back to the Supreme Court to touch about Jefferson Davis, who I'm not even sure at that point. And you got to go back in history. Did they lose their citizenship at that point? I want to start that question over. So get ready to replay it.

Just it's like way too into the weeds when it was. No, you know, a simple question, a law professor response to a straightforward advocacy question. He is a law professor.

Justice Jackson was completely correct in what she said. They intentionally removed President because they didn't want President in that list of officers. And he conflates.

Well, I don't think it's worse than conflates. Yeah, I think he says the history support. Yeah, there's history to support that. Well, there was some history where some members of the Senate said it should apply to the President. But most of them said it should not. That's right. And that was it. And that was the bill that was passed.

The law is the law. Let me play that question again. So I want our audience to hear and understand what this is about. I just am surprised that you would, given the text of the provision and the historical context that seems to demonstrate that their concern or their focus was not about the presidency. I just don't understand why you're giving that argument up. There is some evidence to suggest that. Is there any evidence to suggest that the presidency was what they were focused on?

There is some evidence of that. There were people saying we don't want Jefferson Davis to be elected President. And there was also one of the draft... Two senators said that. The rest of the United States Senate did not.

Go ahead, play the rest. Afso Section 3 specifically mentioned the presidency and the vice presidency as an author. But it wasn't the final enactment.

Yes, I'm sorry. It wasn't the final enactment. But it does show that there was some concern by some people about Confederate insurrectionists ascending to the presidency. And we didn't want to make a law...

I'm just going to stop right there because I'm going to say this on the record. That was not a good answer. Here was the answer. Presidents are not officers of the United States. They commission officers of the United States. Officers are not elected. John Roberts, Chief Justice opinion 2010. The history shows that when there was a reference to the President in a very early draft, it was removed by the drafting committee because they said that is not what the concern is here. So you play the rest of it, but I think that was a... At the end of the day, folks, I don't think it's going to matter. I think we're carrying this 9-0.

But go ahead. Office history type argument where we just look at the historical evidence and pick the evidence that we like and interpret it tendentiously because the other side can get back with us and throw this countervailing evidence back in our face. So we wanted to focus more on the text of the Constitution because this was ultimately a compromise provision that was enacted in Section 3. Every piece of legislation is compromised.

Every piece of legislation is negotiated. But the text itself doesn't list the President. It lists Congress, senators, electors to determine President. They wanted that protected, but not the President themselves. So you can't put him in an all-encompassing and all of our officers under the United States.

It's weird that he goes back and says, well, there were some people that were concerned and he's worried that they're going to mention that in the thing. But any comeback to that would be they had a legislative debate and they decided ultimately that those people who wanted the President there, they lost. And then those who put forward this amendment, which again is more than just like passing a law. This is a constitutional amendment who went through that process, decided clearly not to include the President or vice President. So they're both acknowledging, at least right there, that through that much more difficult process of going through a constitutional amendment than like passing a law, that they did not include the President or vice President. He at least does admit that finally. He just won't say like, well, the other side would come back and say, but they wanted to.

Some people wanted to. Well, I mean, two people wanted to and they lost. That's not how law is determined in the United States or how the Supreme Court's going to interpret law in the United States. They don't determine law by who lost the debate on a constitutional amendment. Can I give you the Jay Sekulow rule one of Supreme Court oral argument? The word concede never is in your argument because here's what happened. Concede is always a footnote and it's usually footnote three, as counsel conceded at oral argument, fill in the blank. Okay.

Answer the stinking question. He did. He was given a professor's answer. Well, there's arguments. This is the problem with, and he's argued cases before he's a smart guy.

I'm not, I'm not trying to do this. What I don't want people walking away from is confused that somehow we're losing the officer argument because he kind of conceded it. There's hundreds of pages, thousands of pages of briefs on the President is not an officer in the United States when you add the amicus. And ours was excellent.

Our briefing on it was excellent. And again, you know, to see Jackson and Sotomayor and Kagan all agreeing that he's not an officer under the 14th Amendment. He's not on the list.

He's not, according to history, very encouraging. You know, I think, again, you can't ever guess through oral argument what's exactly going to happen. But when you, when you look at the briefing, there were a lot of briefing, though, they were trying to argue that he was an officer. I didn't hear anyone yet on any of these justices buy into that theory.

No. And there were some conservatives who tried to put that forward. They, it's not even an argument the President's an officer. I have not, there could be justices that believe it, they just haven't talked yet about it.

But they definitely didn't express it orally. There's also the, the secondary argument we'll get into in a moment, which is the self-executing argument. So let's go, we'll be back in a moment. Are we going to the break and hearing this? Okay. All right, the case is over. The oral arguments have literally just finished. That is it. I think we're going to win 9-0 on the issue of the President.

Tell people why, because they probably, if they did, listen to, well, let's see now. What was, what, about an hour? And 40 minutes.

Yeah, 40 minutes, about what we thought it would be. They might be a little confused, because you had the Trump attorney go first, and he seemed more combative than the attorney representing the individual voters in Colorado, who was still getting very tough questions. Wait, they did get tough questions. In fact, let's go ahead and play this one. This is following up on, is the President an officer or not? It's a threshold question, because you don't even have to go to anything else.

Listen, we had discussions in our offices, we were putting it together, and we decided to lead with that issue, because I said it's almost like, and you remember this conversation, I said it was almost like a jurisdictional argument. If the President is not an officer, you don't have to look at anything else under the 14th Amendment. That's correct. You look at that and you stop.

That's all that you need to do. He's not an officer. Right. So, you know, Harry, if you look at it as a jurisdictional point, if you're not an officer of the United States, none of this applies. Absolutely, and that's an extremely simple argument and one that Jonathan Mitchell missed. Yeah, you know, the justices didn't miss it, though, because even when they were questioning Murray, the lawyer for the election, the electors in Colorado, the voters in Colorado, Justice Jackson, again, a bind appointee, would not let this issue go.

Take a listen to number 57. Right, but I'm not making a distinction between ballot access and anything else. Understood, but the more broad point I want to make is that what is very clear from the history is that the framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the United States. But then why didn't they put the word President in the very enumerated list in section three? The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred and President is not there. And so I guess that just makes me worry that maybe they weren't focusing on the President. And, for example, the fact that electors of vice President and President are there suggests that really what they thought was if we're worried about the charismatic person, we're going to bar insurrectionist electors and therefore that person is never going to rise.

Which is exactly and precisely what we put forward in our brief. Now, the interesting dynamic here is this is not falling based on the argument on ideological lines or political lines. There seems to be an overwhelming support, despite the argument, that nine justices that I heard believe that the President, as Justice Jackson just said, is not a officer because not listed as an officer under the list of positions under Article 14, section three. At least not this provision. I mean, you don't have to really go further than whether it's an officer or not broadly, it's under this provision he's not listed or they're not listed.

And then they even talked about the electors of a President being listed, but not the President being listed. But then you don't have to address anything else. The case is over. And no states can do this. It stops all the litigation in all 15 states. It lets you, the American people, I don't care who candidates you vote for. It's going to count if you vote for Donald Trump.

If that's where you want to vote. I mean, so the question is not, this case is, I mean, Trump is the party, as the Colorado GOP, the California we represent is the party. But I think the reality is that I believe that there are, from the oral argument, you always have to be careful, there appear to be nine votes on the officer issue.

Yeah, absolutely. The officer issue, like you said, the liberal justices and really Jackson led it, that she did not believe the officer thing. And then I think they also are all very concerned, again, even the liberal justices, that one state cannot decide this. They cannot take away the right to vote of people.

They address that quite a bit as well. I mean, there was discussion literally where the Colorado attorney said, well, Colorado might do it and another state might not allow it. I mean, so you're thinking about a federal election for President of the United States where some states count your vote for a candidate, other states bar that candidate from running.

And what is it, if you get enough of electors? But that's what's also barred here. I don't think they want to go, you know, if you don't have to get into self-executing, if you don't have to get into all those other issues about, you know, even the First Amendment.

Or the insurrection. And you could just go and say, this is not about the President, goodbye. And, well, I think that they may have, some of those liberals may have made it clear today because they're the ones worried about the criticism the most, right? Because this could be saving Donald Trump for being able to run for President. That's their short-term concern. I think why they actually came forward early with their objections was to be clear to all of the left to say, this is not something we're buying.

Like, long-term, like you said, that is not about Donald Trump. Long-term, we don't want, we don't believe that this power rests in the states like this where they can, again, just unilaterally decide this person's going to be barred from running for President. And even though they meet all the other qualifications. And I think that the liberal justices wanted to be heard on that because they are going to, like, if they do sign on to some 9-0 opinion, who's going to get the most criticism? Not the conservative justices.

It's going to be those three liberals, especially if President Trump got re-elected this term and the left is going to point to them as the reason why. But you know what, you don't go to courts to try and beat out candidates in elections. I think this was an example for the left today, maybe. I think the missing part of this is, and I want people to understand, is it affects your right to vote in every primary in the country.

There were 17 states were trying to remove Trump, but next time it could be removing another candidate. And they were doing it on their own volition. And there were two arguments that were being, you know, the officer one was the off-ramp. And it's interesting, Mitchell says in his opening, not an officer, and then when pressed on it, just crumbled on that issue. It was ironic to me, and I'm still trying to, Andy, I'm still trying to figure out what happened, but we believe that the officer issue was the issue that had to be addressed first. That's why it's our first argument in our brief.

Here it is. And the first argument is the President is not an officer of the United States. That's correct, Jay. And I don't see why Mr. Mitchell, who was arguing for President Trump, would not accept that gratefully and happily from the justices who are handing it to him, but who kept sort of crawfishing on it and backing off and not wanting to embrace what people like Justice Jackson and Justice Kagan were saying. I think even the Chief Justice talked about the fact that the 14th Amendment's about holding back state power. Why would this one provision give states so much power?

Same kind of issue. I was going to talk to Harry about that. I mean, in reality, as we know this, the Reconstruction Amendments were put in place to restrain the states, not to give the states power. Absolutely. And the Reconstruction Amendments were aimed at local bias. That is why the President was excluded from the officers who might be impacted by Section 3. It was local offices, not national offices. You know, Justice Kagan said, why should Colorado get to decide who can be President?

Let's get that bite ready next. I mean, that's a good question. And that's exactly the issue that we raised up.

A state – a 51-state experiment here is a disaster for the country. And I think – so the end result is, put the argument aside for a minute, I said in cases like this, the briefing is critical and that's – What was interesting is they did not buy into much of that briefing that the President is an officer. I mean, we didn't hear it. Whether there's some justices that believed it, there were a lot of – there were even some conservatives who tried to put forth that the President was an officer always. But no one brought – I mean, that wasn't brought up orally today by the justices. Whether they believe it or not, we don't know. What are we talking about?

Which issue? The other side of this, like, did any of those justices actually buy in that the President is covered under? No, I don't think – no one put that forward. Yeah, it didn't seem like it. They at least were quiet on it. That's right. Yeah, there were a couple that did – I think Kagan spoke.

I know the three liberals – the conservatives didn't say a lot on it. No. No, but I think that's a good sign, actually.

Yes. All right, we're going to be back for another half hour of the broadcast. A lot of you are watching, so we encourage you to share it with your friends. Support the work of the ACLJ last day of our double matching challenge for this – the enormity of this case, our matching moment. You go to ACLJ.org slash vote, and if you can support the work monthly of the ACLJ, become an ACLJ champion with your monthly donation. By the way, almost 19,400 of you have done that.

Back with more in a moment. I'm not sure the justices bought into that either, but – so the first bar, and we've all talked about this in our brief, representing the Colorado Republican State Committee, was that this doesn't cover the President, and that you can stop right there. If you believe – if you understand and you accept that argument, you don't have to go to any of the rest of our brief. But if you don't, we put other things forward, multiple reasons why this does not. So it does – it's not like we stop there. We make sure to cover a multiple of issues of why this should – this does not apply and is not correct. Let me go through what we've said in our brief. I think this is important for people to understand. The President is not an officer of the United States under Section 3 of the 14th Amendment.

That's number one. Pretty clear. The text of the Constitution confirms that the President is not an officer of the United States. The oath the President takes is distinct from the oath officers of the United States take, further confirming he is not an officer of the United States under Section 3.

We've said that a few times now. Then the next argument we make is Section 3 of the 14th Amendment vests enforcement authority in Congress and does not give individual states or states official a self-executing authority to seek disqualification. Then we say this court's precedence repeatedly confirms that the 14th Amendment is not self-executing. And we then say Griffin's case, which you heard a lot in this argument, confirms that in accordance with the due process, Section 3 of the 14th Amendment is not self-executing, meaning you have to have legislation from Congress that would give you a cause of action. Empowering state courts or state secretaries of state to decide disqualification under Section 3 is inconsistent with our constitutional design. We then say that Section 3 only disqualifies certain categories of people from holding office, not from seeking it. And finally, which barely came up in this argument but it did towards the end, the First Amendment protects a political party's right to select its own nominees and to participate in the elective process. And by the way, that protects your right of First Amendment association. So that was the comprehensive nature of what we would have done. I would have presented the argument differently.

Every lawyer does it differently. Obviously, I think the Trump legal team, while they don't think the President's an officer, I don't think they're sold on it. They may have been concerned that they were going to get hit hard by the left. I don't know. Or by the right?

But even if you get hit hard, you got to do it because it's the right thing to do. Yes, but it's bizarre. The one thing that was, I think, tough for people likely was that if you tried to list that first 30 minutes, it didn't really have a guy float. It wasn't like the one, two, three, four that might be there wasn't there. It was hard to distinguish that one, two, three, four. And I always try to do this when I say, you know, Mr. Chief Justice, and may it please the court, the Colorado Supreme Court was wrong and should be reversed for three reasons. And I just read you the three reasons.

And you just boom, boom, boom, and no matter what you get asked, you go back to this. I thought, Harry, that Jonathan Mitchell, the smart guy, was, and you're a professor too, so don't take this the wrong way, it was too much of a professorial argument. That's not going to affect the outcome here, I don't believe. But it was theoretical, it was thinking about both sides rather than advocacy. I think you're precisely correct. And I think Professor Mitchell was more concerned about vindicating his own argument than prevailing on behalf of the client.

There were easy arguments, which we raised in our brief, which he ignored. And then number two, he kept suggesting that there might indeed be some self-execution, executing component of Section 3 of the 14th Amendment. I thought he confused his case at the end of the day, but at the end of the day, I also think he will prevail. Oh, we're going to win.

I think we're going to win 9-0. But I think, Andy, that was part of the problem. Yeah, I think Professor Mitchell wanted to win, but he wanted to win in his way.

Yeah, I always look at, you know, here's my theory. If you lost below, which Trump did, here's what I want the opinion to say, reversed. Somewhere in the opinion, I made that statement once to Chief Justice Rehnquist.

He was pushing me hard, Mr. Sekula, what do you want this opinion to say? I said, well, Mr. Chief Justice, somewhere in the opinion, I'd like it to say reversed. And then when this immunity case comes up, don't do what you just did, because that's the same mistake.

You're shooting for a three-point basket when all you have to do is do a layup. We've got a lot more to discuss. We'll take your calls on this. If you have questions, 1-800-684-3110, 800-684-3110. Back in a moment.

All right, welcome back to Sekula. So, interesting too, because usually you hear... We're making calls. Yeah, we are taking calls on 1-800-684-3110. Usually you would hear some reaction from the attorneys, but President Trump went out to react. So, we haven't heard any reaction from the attorneys. We might not see that at all today.

I mean, maybe later on. The interesting, I think, part here, and again, we're going to move to it, even though the justices might never move to it in the actual opinion that comes out, which is you would have heard this term self-executing a lot throughout this whole discussion. While we've been talking about this as it's gone up to the Supreme Court, which is, can this just be, because it's written in there, can Colorado just decide when to do this? Or does Congress have to take some other action that says, this is how you do it, or this is how we do it? We do it by bringing forward another law, another statute, and we're not going to let states do it, or vice versa. We'll let states do it, but this is our law.

Or it's there so we can just, whenever we want to use it, we can use it even though no one really has at this level. And they had to argue that it was, because self-executing Colorado had to be taken. Self-executing issue means this, in other words, the 14th Amendment lays out these issues, these concerns, insurrections should not hold office. But there has to be enabling legislation, in other words, something that allows you to then bring a cause of action. The amendment itself is not the cause of action. Now, this is an issue that they picked up on, including Justice Kagan, who I'll let Cece address in a moment, who basically said, you know, is it Colorado deciding this for the rest of the country?

You can't have that done. Because again, that's why it's not self-executing. It has to be something enabling them to do this.

Right. Kagan literally said, why should Colorado get to decide? And actually several of them, they were very concerned about, how is it, how are you arguing that one state gets to take the right to vote for these candidates away from every other person in the United States? This is a big deal, folks, that part right there.

This is a huge part of this, because the reality is, you've got to really drill down on this, okay? It is your right to vote that's being impacted here. When Colorado does this, it's affecting your right to vote. When Maine does it, it affects your right to vote, even in another state. Because you know what?

When it comes at the end of the day and they try to put together the electors to then choose the President, and you're not, your candidate that you voted for in Georgia is not on the ballot in Colorado, they don't get those Electoral College votes. And that's why this impacts everybody and has nothing to do, actually, with the current, the former President of the United States in one sense. I mean, he is the target of this, but it is much broader. So self-executing is important, and the idea, I don't think you have to get to it on the other grounds, but let me go ahead and play. This is, let's go ahead and play the self-executing. Justice Thomas asked this question early on. Your argument is that it's not self-executing, but then in that case, what would the role of the state be, or is it entirely up to Congress to implement the disqualification in Section 3? It is entirely up to Congress, Justice Thomas, and our argument goes beyond actually saying that Section 3 is non-self-executing. We need to say something more than that, because a non-self-executing treaty or a non-self-executing constitutional provision normally can still be enforced by a state if it chooses to enact legislation. The holding of Griffin's case goes beyond even that by saying that a state is not allowed to implement or enforce Section 3 of the 14th Amendment. I'm stopping right there. That statement, that if it's non-self-executing, it could still be enforced by the state.

No, it has to be legislation. Like I said, I don't think they get there, but that's where it is. All right, we got calls coming in, 1-800-684-3110. Let's go ahead. We'll start it from Florida on Line 2. Hey, Carrie, welcome to Sekulow. You're on the air.

Hi, gentlemen. I'm very happy with the decision today, and I'm listening to you right now. Well, there's no – let me be clear, Carrie. There has been no decision given yet.

That's going to be a couple weeks away. We've got the questions. We've got the questions. We don't have a decision. Go ahead. You're right.

I'm sorry. I was listening to what you said about Mr. Mitchell and how he argued the case. I read your brief last night, and I was wondering why Mitchell – Mr. Mitchell, did he have a separate brief?

Why didn't he follow your argument? That was up to him and their legal team. President Trump had his lawyers. Jonathan Mitchell was the Supreme Court lawyer that was handling it for him. And then we represented the Colorado GOP as a party. So I'm holding it in my hand.

We'll put it up on the screen. Our red reply brief – we filed four briefs in this case, merits briefs and served for our petitions. And we had our arguments, which was the President is not an officer of the United States under any interpretation and was intentionally left off after debate.

And even though it was on earlier drafts, as they went through the process, they took them off. And we had a different – look, to be honest, this is the reason why I didn't argue any of this. Andy and I talked about this because we could have gotten divided argument here for our team. And the reason we did not is we would have been in conflict with them.

Andy, that's what you were concerned – I remember the phone call when you called me and said, here's the problem. We're going to be in conflict with our own side. Yeah, we would be butting head-to-heads against Trump's lawyer if we were to do that. And what they should have done is simply adopt our arguments, but he chose not to do that. No, but I think at the end of the day, we're going to still carry the day here. So I don't want to – I don't want to – I don't want to overrate, you know, overblow that.

Yeah, true. And I mean, I think that that's got to be – for everybody listening to, don't like run to the hills over this thing and you think that this is going to bar President Trump. I think that the fact that you had the liberal justices bring up the kind of threshold issue and you had the conservative justices concerned about the self-executing language, you put that all together and you say, well, they might not agree on why this doesn't apply, but they may all agree. I mean – I think it could be 9-0.

I don't get Harry's opinion on this. I would not be shocked if it was 9-0 on the issue of the President is not an officer for Article 14. That would clear it up. It would be done.

It would be over. I think that's correct. And certainly if you survey each and every justice, they provided a basis for ruling in favor of Donald Trump, notwithstanding the arguments made by Donald Trump's lawyer Jonathan Mitchell, who was more concerned with being professorial than actually winning the case. And I think at the end of the day, if we simply adopt the last caller's perspective, the Trump lawyer, Mr. Mitchell, should have adopted our brief and made a straightforward and simple argument. Number one, Donald Trump was not and is not ever an officer within the meaning of Section 3.

End of story. We don't have to worry about self-execution. We don't have to worry about insurrection.

We don't have to worry about giving aid and comfort to the enemy. Defining insurrection didn't come up that much either. One little series of questions. Which was interesting to me because if you can't define it, if that didn't even come up, you've got to be a little concerned with Colorado.

Oh, I think Colorado knows they're losing. Let's listen to Justice Kagan a little bit on the First Amendment issue, which we raised. The last argument we raised in our brief was the First Amendment protects a political party's right to select its own nominees and to participate in the elective process. In other words, there's First Amendment protection here that applies. It did come up in the First Amendment, but there's a broader principle there and it's a broader principle about who has power over certain things in our federal system. Within our federal system, states have great power over many different areas, but that there's some broader principle about that there are certain national questions where states are not the repository of authority. I took a lot, First Amendment, not First Amendment, a lot of Anderson's reasoning.

It's really about that. What's a state doing deciding who gets to, who other citizens get to vote for for President? Colorado is not deciding who other states get to vote for for President. It's deciding how to assign its own electors under its Article II power. The Constitution grants them that broad power- But the effect of that is obvious, yes? No, Your Honor, because different states can have different procedures.

Some states may allow insurrectionists to- Okay, I'm jumping in here. This is what I want you to understand. Do you understand in today's broadcast, the justices we played in this case involving the former President of the United States, Donald Trump, the justice we've played for the most part other than Justice Thomas, have been Justice Jackson and Justice Kagan appointed by Democrats. What does this tell you, folks? You don't go into these cases with this idea that there's this ideological, guaranteed, this is how it's going to go, because guess what? You had two justices there saying basically, we're not buying any of this, the states don't get to decide it, and he's not an officer in the United States, so why would this be in there?

I think that part's really important. No, because again, I think that they do think a little bit more long-term the next four years. I mean, the Supreme Court lasts longer than four, and they do have to look to legitimacy both sides. And I think on the left and the right, and you look at it and say, you know what, if we start picking and choosing, because we just don't like Donald Trump, even though he already went through this impeachment, Congress tried to hold him accountable for January 16th, they didn't, and yet we're going to let, as she said, we're going to let Colorado choose who people can vote for, then that's going to, of course, affect 13 or 14 other states today, and I think another 10 would probably add on it, so it might even be impossible for Donald Trump to win the general election, because he wouldn't be on the ballot in enough states.

He would be in the primary, maybe, maybe not, but certainly it'd be impossible to win the general election. So if this was an attempt for the Biden campaign to take Trump out and get an easy win, this one's not going to work. It'll be interesting to see if later in the day, the left tries to salvage anything from this.

They haven't so far. I looked at the New York Times. The New York Times said this was not good for Colorado. What was the headline? I mean, you're looking through just CNN and all these other places. The headline from CNN is what we're hearing. The Supreme Court appears post to back former President Trump and finned off a blockbuster challenge to eligibility.

I think that's exactly right. Justice's question, Colorado challenger suggests his support for Trump in the dispute. Start with the Chief Justice saying what we said about the states, the 14th Amendment.

They don't get more power in the 14th Amendment. 6843110 and let's go, let's go to the calls and start with Michael in New Hampshire on line one. Hey Michael, welcome to secular. You're on the air. Hi.

Thank you for taking my call. Uh, now I'm a thorough, um, a lay person when it comes to this, but it just seems to me from simple logic, as far as, as I understand, there is no language in the 14th Amendment that defines either what an insurrection is or defines what constant, what constitutes insurrectionary activity. That alone indicates to me just from a logical standpoint, that the 14th Amendment was not meant to apply to any person, any government officials or former government government officials except those who were involved in the Confederacy because without there's actually an argument to that effect. I mean, there are law professors that believe that the 14th Amendment's insurrection clause kind of evaporated, but it's still there. But you raise a good point and that is there is not a definition of insurrection. Now we have a criminal statute on an insurrection that exists in the United States, but interestingly President Trump, who's been charged with a lot of things, and he has not been in charge with that. No, he has not been in charge with that.

There's been no charge of insurrection here. No. Yeah. And Kavanaugh actually brought that up specifically that there is a, you know, federal statute on the books, but he has not been convicted of it. Right. Not convicted.

Not convicted. Yeah. I mean, yeah. I think again, and I think Michael's argument, I actually probably agree where you're going with it. And I think you just don't have to go that far today. No, not today. You don't have to go as far as to say- I don't think he's wrong. Right.

You don't have to go so far as to say this doesn't apply anymore, even though I think it's right to look at it and say, obviously they knew what they meant when they wrote it then because they were talking about actual, the Civil War. Let's take Michelle's call from California. Go ahead, Michelle. Hey, Michelle. Welcome to Secular.

Hi, thank you. Yeah. I just want to say to the justices, it's confusing because I can't even tell who is for or against Trump. And I just feel this isn't helpful for Trump. Well, no, I think the argument itself, look, I think the justices, I mean, I understand your frustration. It's very hard to read from moral arguments, but let me tell you where I thought there was coalescing. And that was on the issue is, is the President an officer of the United States subject to the 14th amendment because if he's not, if he's not, then it doesn't apply.

And that's what we call an off-ramp. That is an easy way to make a decision, Harry, that it doesn't even apply and we don't have to get into any of these self-executing issues, state rights issues, first amendment issues. It just doesn't apply to the President. I think you're precisely correct. And I also would say that the liberal justices seem to accept that argument that he's not an officer.

Justice Jackson engaged in an extended discussion on that particular question and she noted that the President of the United States is not included in the list of enumerated officers. And so that at the end of the day, I would argue, ends the case, an easy decision. And I think at the end of the day, you will probably get unanimous support on that precise issue. One of the best justices on the issue, at least from the oral argument, frankly, was Justice Brown and Justice Kagan.

And that's why I'm saying, folks, don't go with ideological things here. You try to get all nine and John Roberts is the chief justice because of institutional credibility of the court, is going to want a coalesced opinion if it is possible. And it seemed like to me, despite hedging from Mitchell on the officer issue, I think we're there. I think there's another line from Justice Jackson about this being at best ambiguous. So I mean, the Supreme Court is not going to go for this brand new precedent of a state being able to do this.

I don't think so. If the most liberals on the court are saying that the most liberal justice of the court are saying at best, this is ambiguous if we could even agree with you here. I mean, that's a pretty tough, if you say that today in oral argument, pretty tough to then go back and write and say, actually, I don't think this is ambiguous anymore. Right. Yeah. And then Kagan saying, one state trying to decide who should be President. I mean, I'm watching the headlines come up here. I mean, that's a huge problem.

There's a difference. I mean, that Barrett says does not seem like a state should make a call. Jackson says uniformity nationally is necessary. A leader does not like different states setting different standards for the presidency. Kagan says, what's the state doing deciding what other states get to vote for for President?

Now that pretty well indicates to me that the states does not have a role in this. That's what we think. And that's certainly what we argue. Let's go ahead and take another call. Yeah.

We can go to Tim in Colorado online for hate him. All right. Thanks for taking my call. Um, I was seriously dismayed and I'm not a Trump fan, you know, dismayed at how my secretary of state basically arbitrarily made this decision to take them off the ballot. And now I just cannot believe that we're at this kind of point in our country. But the, uh, but the message I hope these other secretary of states get is that you're not the judge.

You're not a jury. Right. It's a process. No, you're exactly correct. And the reality is they are going to write an opinion that's going to affect all 50 states.

I'm, I'm, I'm really convinced of that because you've already got made who's taking this position. This was not just Colorado. We're litigating 40 other states. And remember in Maine, it was a administrative review by the secretary of state in Colorado. The secretary of state put to this to the courts said, I need the courts to tell me I can do this. And neither one of those is really the right way to go here.

That's right. And it was, it was very interesting to hear that it wasn't just the conservative justices that believe this way, that the, the liberal justices and, you know, I've heard some people say, oh, they're on Trump's side. I don't think they're on Trump's side. They're on the side of this is not what the constitution says. And they're right.

And they've articulated it very well. Let's go ahead and play the justice Alito questioning the solicitor general of Colorado. What is a state that does recognize non-mutual collateral estoppel makes a determination using whatever procedures that decides to adopt that a particular candidate is an insurrectionist.

Could that have a cascading effect? And so the decision by a court in one state, the decision by a single judge whose factual findings are given deference, maybe an elected trial judge would have potentially an enormous effect on the candidates who run for President across the country. Is that something we should be concerned about? I think you should be concerned about it your honor, but I think the concern is not as high as maybe it's made out to be in, in particularly some of the amicus briefs. And again, under article two, there is a huge amount of disparity and candidates that end up on the ballot on different states in every election. Just this election, there's a candidate who Colorado excluded from the primary ballot who was on the ballot in other states, even though he is not a natural born citizen. And that's just, that's a feature of our process.

It's not a bug. You know, it's interesting that Alito is expressing there, the lack that Harry, the lack of uniformity would create havoc in the, in the election process. I think that is correct. And so basically what we are opening up is a can of worms that leads to chaos with respect to Presidential elections. And then that leads ultimately to a disrespect to the outcome of whatever election we come up with because many people have been perhaps deprived of their legitimate right to vote. And so I think in this particular case, in the Trump case, the facts are clear, the law is clear.

There is no basis for disqualifying President Trump. I think that's going to be the end result. I think they're going to decide that the President is not an office order two weeks before super you get it before. I think it has to end of the month or super Tuesday. Certainly by the end of the month before super Tuesday. And this will be one of the most historic cases in US history.

And we got to be a major participant in it. And it is now the case as Chief Justice Roberts said, has been submitted. They will go back into their chambers and then they'll have a meeting and conference and they will vote. That vote could take place tomorrow.

It could take place today. They will vote. Then the chief justice will probably assign the opinion. I would guess to himself and I would expect nine zero on the issue of officer.

That's going to do it for the broadcast today. Support the work of the ACLJ last day here for our matching moment. Your gifts are going to be doubled because of the enormity of this case, ACLJ.org forward slash vote. That's ACLJ.org forward slash vote. And don't forget if you can support our work monthly, you become an 18 an ACLJ champion joining 19,200 people that already are back with more next tomorrow.
Whisper: medium.en / 2024-02-08 14:09:53 / 2024-02-08 14:31:44 / 22

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