February 7, 2024 • 43 mins
No matter what side of the political spectrum you fall. And whether you think the former president should be on the 2024 ballot or not. Tomorrow's Supreme Court consideration of the Insurrection Clause is historic. We could not let it happen without taking a look.
In this interview, Bob interviews constitutional expert Ilya Somin, a professor at George Mason University. What follows is an engaging exploration into the 14th Amendment's insurrection clause and its potential repercussions for Donald Trump's political future. As the Supreme Court deliberates, we dissect the amendment's historical roots, established to curtail post-Civil War insurrectionists, and scrutinize its relevance in the wake of the January 6th Capitol siege. The conversation traverses the terrain of past rebellions and posits how the Capitol breach stands in comparison, offering an intricate understanding of the constitutional definitions at play. We take no side in this fight and the professor's views are his own.
Navigating the murky waters of what constitutes presidential support for an insurrection, we scrutinize Trump's actions on the fateful day, incljuding the implications of his response—or lack thereof—to the Capitol breach. The episode peels back the layers of constitutional ambiguity, addressing the complexities of determining engagement in insurrection, and how these gray areas resonate with our democracy's fundamental themes. Through Somin's expert (and, admittedly partisan) lens, we shine a light on the bearing this case could have, considering the unique dynamics of a former president and current political figurehead's eligibility for office.
Focusing on the electoral eligibility mechanisms, the dialogue turns to the influential role of Secretaries of State and the judiciary's part in protecting our electoral sanctity. Through historical references like the challenge to Ted Cruz's eligibility, we emphasize the importance of checks and balances within our legal system. The episode wraps with insights into the potential for the highest court to interpret both legal and factual findings, particularly in defining insurrection—and what it means to engage in it. For those drawn to the interplay of law and democracy, this episode is an invitation to witness a deep-dive into one of the most pressing legal debates of our time.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Bob Sewell (00:00):
It's a phrase from popular movies.
It's also a question that comesup in our daily life.
The question is is that evenlegal?
We talk about the things thatdrive you crazy, the things you
won't believe and the things youneed to know and understand.
I'm attorney Bob Sewell andthis is the podcast.
Is that Even Legal?
(00:20):
Let's get started.
Today on the podcast is IlyaSolman.
Ilya is a professor of law atGeorge Mason University.
He is a constitutional expert.
He is the B Kenneth Simon Chairin Constitutional Studies at
(00:45):
the Cato Institute.
His research focuses onconstitutional law, property law
and democratic theory andfederalism.
Welcome to the show.
Professor Ilya Somin (00:57):
Thank you for having me.
Bob Sewell (01:00):
I wanted to have you on the show because I'm really
interested in what we've beendealing with here in this
country and right before theSupreme Court right now is the
case of whether or not DonaldTrump can be on the ballot in
certain states that have chosento exclude him from the ballot.
(01:24):
And the most curious one ofthese cases to me is the
Colorado case, and what they'vedone in Colorado is they've used
the insurrection clause of the14th Amendment and they've
reasoned that Donald Trump,because of the activities that
happened on January 6th, is nolonger qualified to be on their
(01:49):
ballot.
And it was absolutelyfascinating to me and I want to
read to you the 14th Amendment,section 3, the insurrection
clause, and then let's talkabout it and about what's going
on here and whether or not wethink that this case in Colorado
(02:11):
or anywhere else that it popsup has any feet.
So here's what it says noperson shall be a senator or
representative in Congress or aelector of president and vice
president, or hold any office,civil or military, under the
(02:32):
United States or under any state, who have been previously taken
a note as a member of Congressor as an officer of the United
States or as a member of anystate legislature or as an
executive, a judicial officer ofany state, to support the
Constitution of the UnitedStates, shall have engaged in
insurrection or rebellionagainst the same or given aid or
(02:57):
comfort to the enemies thereof.
The Congress may, by a vote oftwo thirds of each House, remove
such disability.
There's the insurrection clause.
It came after the Civil Warright and it was in their minds.
(03:21):
When this went through and itwas voted on and became a
constitutional amendment, intheir minds, were these
insurrectionists?
Now, here we are, theseinsurrectionists.
You know the South right Now,here we are.
It's 2024.
(03:41):
What do we think?
Do we think this case isimportant, one at the Colorado,
at the at this Colorado case isimportant, that this is pretty
important.
Professor Ilya Somin (03:57):
Yeah, so it definitely is important.
I don't know which way it'sgoing to come out, but I think
for fairly obvious reasons.
It is important because we'retalking about the front runner
for the nomination of one of thetwo major parties and we're
also talking about the firstpresident American history who,
after he lost an election,instead of conceding his defeat,
(04:17):
he instead tried to use acombination of force and fraud
to stay in power like a tinhornthird world dictator, which is
why this case arose.
So I think it's important.
It's fairly obvious, whateveryou think about how it should
come out.
Bob Sewell (04:35):
So what does it mean ?
Here we have the insurrectionclause and you have been written
on this subject.
I saw your article in ReasonMagazine on the Volcker
conspiracy, which is aconservative, civil libertarian
place on the internet andmagazine on the internet.
(04:56):
What does it mean to be aninsurrection?
Professor Ilya Somin (05:04):
So there is some debate about what it
qualifies or what can qualify asan insurrection.
There's a lot of evidencecompiled by Mark Draber, a
prominent legal scholar, whichsays that an insurrection at the
time, in the 1860s, wasactually defined pretty broadly
to include any kind of forcibleresistance to the enforcement of
(05:28):
a federal law, so long as thatresistance was quote for a
public purpose, which in plainEnglish means that you oppose
the law because you think it'swrong or unjust or bad policy,
rather that you're violating thelaw for a narrow self-interest
like, say, a drug dealerviolating the drug laws because
he wants to make some money.
(05:49):
But I don't think you need adefinition of insurrection that
broad to conclude that whathappened on January 6 was an
insurrection, even under arelatively narrow and intuitive
modern definition of aninsurrection, which says that an
insurrection is just an attemptto use force to seize power and
take control of the powers ofthe government.
(06:10):
January 6 qualifies because thepeople who attacked that day.
They sought to seize power forDonald Trump and allow him to
retain it even after he won theelection and thereby take away
the most powerful office in theland from a person who would
actually won the election JoeBiden.
(06:32):
So under that narrow definitionof insurrection, which I think
is the intuitive one for mostpeople today, what happened on
January 6 still qualifies underthe broad originalist definition
.
Bob Sewell (06:46):
It even more obviously qualifies yeah, and I
think that gentleman who youjust spoke of I can't remember
his name he talked about moregreater.
He talked about the, if Iremember right, the whiskey
rebellion, which at the time wasknown as the whiskey
insurrection, and he talkedabout how look, these are just a
(07:06):
group of farmers and thesefarmers didn't want to pay the
whiskey tax and they rose up tosay we're not going to pay it.
And you know, the Washingtoncame in and they watched the
whiskey rebellion and said no,you're paying this tax.
And so and he reasons rightthat that if that was an extra
(07:30):
interaction, then certainly thiswas an interaction, because
they're trying to stop what youknow, the, the happenings of
Congress at that moment.
Professor Ilya Somin (07:43):
A couple of points about that.
One is in section trajectorysays insurrection or rebellion.
So if somebody is a rebellionbut not an insurrection, it
still qualifies.
The whiskey rebellion and alsoShay's rebellion in the 1780s,
those were the two episodesprior to the civil war which
were generally labeled asrebellions in American history.
(08:05):
Both of them featured levels ofviolence actually roughly
comparable to what happened onJanuary 6th.
When you talk about the numberof people killed or injured, the
number of people involved inthe uprising and so forth and in
terms of trying to seizegovernment power, I think what
happened on January 6th was moreclearly an attempt to seize
(08:26):
government power than thewhiskey rebellion, which wasn't
saying you know, the leader ofthe whiskey rebellion is the
actual president.
He was just saying you know, wewant to block the federal
government from by force, fromcollecting the whiskey tax.
And in the case of Shay'srebellion it was a group of
mostly rural people inMassachusetts in the 1780s
saying you know, we don't wantto pay our debts.
(08:48):
You know, we want debt forforgiveness and for cancellation
.
And they rebelled against theprimarily in the first instance
of the state government for thatpurpose.
Here you have actually moreclearly an attempt to seize
power than in either of thosetwo instances.
Bob Sewell (09:11):
When the Colorado court got received this case it
was sort of interesting to mehow it went about the case the
lower court, the trial court.
The first thing that I foundinteresting was there wasn't a
trial right.
If I remember right, there wasactually per se, there wasn't
(09:36):
fact finding.
The Colorado court took atraditional notice of Congress
as findings.
And the other thing that wasinteresting was the Colorado
Court said that the lower court,which was reversed by the
Supreme Court of Colorado, thelower court said well, we don't,
(09:59):
we think that he engaged ininsurrection, but we don't think
that.
It that the section three thequalifies, because we don't
think that the president is anofficer in the United States.
That one, surprisingly, thatlatter one, what do you think of
that one?
Professor Ilya Somin (10:18):
So first, I note there was in fact the
trial lasted five days.
Both sides were able to presentvarious kinds of evidence.
The court did take judicialnotice, among other evidence of
the report of the CongressionalJanuary 6 Commission, but they
did not simply rely on thatevidence without considering,
you know, other types ofevidence as well.
(10:39):
It is true that when the trialcourt completed its trial, it
then issued a decision where thejudge concluded she said that
there was an insurrection, trumpengaged in the insurrection,
but then she also ruled thatTrump was not covered by section
(10:59):
three because she said thepresidency of the United States
is not an officer of the UnitedStates and therefore you know,
on this reasoning, if you're alow level federal bureaucrat and
you're engaged in insurrection,then you're disqualified under
(11:21):
section three.
But if you hold the highest andmost powerful office in the
land, then you know you engagein insurrection, then you're
home free as far as sectionthree is concerned.
I think this argument is afairly weak argument.
It was rightly overturned bythe Colorado Supreme Court, but
(11:42):
it has attracted the enthusiasmof a people who would like the
Supreme, the federal SupremeCourt, to overturn the Colorado
Supreme Court but recognize thatmaybe the federal Supreme Court
would want a way to do thatwhere they don't have to get
into the details of what wasgoing on January 6 and whether
it was an interaction and thensecond, this is the kind of
(12:03):
argument that sort of lawyerslike but that make the legal
profession look ridiculous andhateful to ordinary people
because it leads to a conclusionwhich is absurd and ridiculous.
But you can try to support it byvarious counterintuitive
textual inferences, like, forinstance, you can look not into
(12:27):
section three but to theoriginal Constitution and you
can find various passages which,depending on how you interpret
them, suggest that the presidentis not an officer.
In every United States, forinstance, there's a provision
which says the president mustcommission all office United
States, and people say aha, buthe can't commission himself and
so therefore you know that showsthat the president is not an
(12:49):
officer.
Or you look at section threeitself and you say, well, some
other offices are enumerated,like members of Congress,
members, the Electoral College,but the presidency is not
enumerated.
So that proves that it wassupposed to be excluded, for
reasons we can talk about.
I think all these argumentsthat ultimately do not work and
(13:10):
they also go against some basicprinciples of legal
interpretation, but it's thekind of convoluted argument that
is attractive to the legal mind, or at least to many of my
fellow lawyers, and that's whyyou know it has some legs in the
Supreme Court litigation, andit did ultimately persuade the
trial judge.
(13:30):
In this case, though, she gotoverruled by the by the Colorado
Supreme Court.
Bob Sewell (13:37):
And I, I, when I heard that, that reasoning, that
from the judge, I wasabsolutely floored.
What do you mean?
The president?
you, know, I could go to hiswebsite will send the offices of
the president United States.
What do you mean?
He's not holding an officewithin the United States.
(13:58):
He's holding an office withinthe United States and I found it
.
It's a little bit absurd, alittle bit, and it's.
You're right.
It's the type of thing thatmakes us look bad as lawyers.
You know, if you, if it takes25,000 pages to explain, while
the office of the presidentUnited States isn't really an
(14:19):
office of the president UnitedStates.
Yeah, I think you've lost theargument.
But one thing that'sinteresting about section three,
that is, you don't have tonecessarily engage in
insurrection or rebellion.
It says, or given aid orcomfort to the enemies thereof.
(14:39):
You could just give aid andcomfort, whatever aid and
comfort is, and not actuallyengage in the rebellion itself.
Did my reading that right?
Professor Ilya Somin (14:50):
So that phrase certainly is in there.
There's some controversy overwho qualifies as an enemy of the
United States, and some arguethat enemies of the United
States unlike insurrectionistenemies and it states are only
foreign enemies, like a foreignpower that we might be at war
with.
On the other hand, there isalso argument that there can be
(15:11):
domestic enemies in the UnitedStates, including
insurrectionist.
If you define aid and comfortrelatively broadly, then you
know what Trump did definitelyqualifies, perhaps even if you
define aid and comfortrelatively narrowly, assuming
that enemies United Statesincludes domestic enemies and
not just foreign enemies.
I think there is, you know, somedanger in having a very broad
(15:35):
definition of aid and comfort,because in that situation you
could say, a member of Congresswho criticizes the government's
conduct of a war while the waris going on might be considered
as a giving aid and comfort tothe enemy and therefore he's
disqualified from office, and Iwouldn't want to go that far.
(15:55):
Fortunately, in the case ofDonald Trump, we don't need to
go anywhere near that far and Ithink there's a strong argument
that he engaged in theinsurrection and not merely gave
aid and comfort.
But it is true that if domesticenemies count as the kind of
enemies that we are talkingabout, then you know he, he
(16:16):
surely did give aid and comfortto them.
Bob Sewell (16:19):
Let me, let me push back on you for a minute.
Not, okay, let me play devil'sadvocate with you.
Section three is comingimmediately after the.
The is coming immediately afterthe Civil War.
Right, it's pretty obvious thatthey're worried about these
people who are in Congress, whoare in state legislatures and
(16:43):
and they were part of this body,you know, that makes laws, and
were here to support and engagein this.
You know this DemocraticRepublic.
And then they, they flipped andthey said we're going to take
up arms and that again.
(17:03):
So that's pretty obvious thatthat's an insurrection, that's a
rebellion and and we don't wantthese people back, like we
fought a war because of therhetoric, the politics, the,
your efforts to stay empowered.
We fought a war for that.
(17:25):
We don't want you back, guys,somehow you're repentant.
In this case, we're going toallow the, the Congress, to
overturn that with two thirdsmajority vote.
Okay, now fast forward.
And we got here today's day,president Trump.
(17:49):
He certainly is engaging indangerous political rhetoric
with him when he talks aboutwell, I won the election.
Joe Biden didn't lose the win,the election, he lost the
election.
He's engaging this.
That's part of his firstamendment, right?
But then he goes to this rallyon January 6th, and he doesn't
(18:17):
say.
What he doesn't say is go tothe Capitol, storm the Capitol,
smash the doors down, smash thewindows in hang Mike Pence and
assassinate Nancy Pelosi.
He doesn't say these things, soI think, is it enough then?
(18:43):
Is it enough?
Professor Ilya Somin (18:45):
Yeah.
So I do think the best argumentthe other side in this case has
is the idea that even if therewas an insurrection, which are
pretty clearly was maybe Trumpdidn't engage in it.
That said, I think there isnone.
The West Australian case thathe did for a couple of reasons.
One is, as the Colorado SupremeCourt found, we have to focus
(19:08):
not just on what he said at thatrally but on what he said and
did before and afterwards.
And, as the Colorado SupremeCourt explained, there was a lot
of things that he said beforebeginning weeks earlier, that
encourage violence by barriersof his supporters, that he had
good reason to know where thekinds of people who were likely
to be violent groups, like theProud Boys, for instance, that
(19:31):
were later heavily involved inthe attack on the Capitol.
Second, when you look at thespeech as all speech, you have
to interpret it in context, andthose statements about fight
like hell in the wake were inthe context of a mob that he
himself had primed for violencebefore, and that makes it
different than say if someone issitting on a bar stool saying I
(19:53):
got a fight like hell for mypolitical principles or
something like that.
And finally, I think perhaps thesingle most damning part is not
what he did before the rally ordoing it, but what he did
afterwards, when he went back tothe White House and they were
attacking the Capitol.
During that time, he wascalling up members of the House
(20:14):
and Senate, urging them toreject the electoral votes and
keep them in power, and that iseffectively using the attack on
the Capitol as leverage to tryto get Congress to do what he
wanted.
So he was essentially thereworking in cahoots with the
attackers.
Rather than trying to stop theattack, or even rather than just
(20:36):
sit and round and do nothing,he was using the attack as
leverage to achieve his purposes, which, of course, were also
the purposes of the attackersthemselves.
And that, I think, is the mostqueer aspect of what he did in
terms of engaging ininsurrection.
Bob Sewell (20:54):
Yeah.
Would it be enough if he tosimply do nothing?
Would that be enough?
Giving aid and comfort Well,I'm not going to send in the
National Guard, I'm not going tosupport the police for several
hours Would that be enough?
Would that be giving aid andcomfort to the enemies there?
(21:14):
Would that be engaging ininsurrection?
If I, just if Trump did nothingto quash it?
Professor Ilya Somin (21:22):
So for an ordinary person to do nothing,
clearly that would not beengaging in insurrection or even
giving aid and comfort.
For the president, unitedStates, things are more
complicated, because he has aduty to suppress insurrections
against the United States and itlike so.
If he chooses not to, you canargue that that gives a comfort
in a way that would not be thecase for an ordinary person, but
(21:45):
the court may not even resolvethat issue in this case, because
Trump did do more than merelydo nothing or sit around or
whatnot.
He had incited the insurrectionbeforehand and while it was
going on he was trying to use itas leverage to achieve his
purposes of illegally seizingpower that did not belong to him
(22:06):
for another term, and thereforethere's no need in this case to
even really consider the issueof whether, in some
circumstances, doing nothing canbe a form of giving aid and
comfort, because here we havedoing something.
Bob Sewell (22:21):
Let me ask you a question.
Let's change the changedirections a little bit.
One of the things that isreally odd to me as an attorney
is section three doesn't give aprocedure.
It doesn't give a roadmap.
Now there's a lot in theConstitution that doesn't give
(22:42):
procedures.
In fact, the Constitutiondoesn't give procedures anywhere
.
I've heard it referred to someof this that they are self
executing right.
So everyone knows that involuntary servitude, slavery you
don't need to have a proceduredefined as someone is forcing
(23:06):
another into involuntaryservitude.
Professor Ilya Somin (23:08):
There's no procedure necessary.
Bob Sewell (23:11):
If you force someone into slavery, they're in
slavery.
That's illegal, that's wrong,that's unconstitutional.
But we don't have it here.
And it seems like here it's alittle bit more wishy-washy,
because we have to definewhether or not someone engaged
in an interaction or rebellion,whether or not someone's an
(23:32):
enemy of the United States andwhether or not the acts were
giving aid and comfort.
But we don't have thatprocedure.
Are you bothered by this?
Professor Ilya Somin (23:48):
Not particularly.
No, though obviously it is anissue to raise the litigation as
you suggested.
There are many parts of theConstitution where there's no
specific procedure laid out forhow to adjudicate or how to make
factual determinations and it'snot spelled out who gets to
define the words.
I think a key backgroundassumption of all or most of
(24:11):
these parts of the Constitutionor specific procedures aren't
laid out is that in the firstinstance it has to be dealt with
by whatever state and federalofficials normally deal with
this area of policy, in thiscase electoral qualifications
and then if one side or theother thinks that it was handled
illegally, then they can go tocourt.
(24:31):
They could potentially go tofederal court or to state court
and those courts will then usethe ordinary procedures of civil
litigation to make factualdeterminations and legal rulings
.
And where there is a federalconstitutional issue, obviously
a determination by a state courtcould potentially wait or be
(24:54):
challenged in federal court, inthis case the US Supreme Court.
So it is true it's possibleofficials can mishandle the
definition of insurrection orthey can mishandle factual
determinations that are relevantand the like, and it is also
true that in different states orin different lower federal
(25:14):
courts you could get differentconclusions, but that happens in
constitutional litigation allthe time, and that's one of the
reasons why we have a SupremeCourt where, eventually, issues
like this can be appealed.
So if you need a nationwideuniform determination as it
ain't in this case you do thenthat can happen.
(25:35):
But there's nothing unusualabout provisions which are self
enforcing, that is, you don'tneed additional congressional
legislation, but at the sametime, the Constitution doesn't
spell out the precise procedureby which the legal issue will be
resolved.
Bob Sewell (25:55):
Well, this is what bothers a lot of people who are
looking at this from the outside, because in many states the
Secretary of State decides whoqualified for the ballot.
The Secretary of State makes adetermination.
They look at the did they getthe right number of signatures?
Did they fill out the rightpaperwork at the right time?
(26:18):
I never ran for office and I'mnot an election attorney, but I
know that those types ofdeterminations are made from the
Secretary of State.
And why couldn't we?
You know, in this case we couldhave, as a Secretary of State,
that could say hey, I reviewedthe Constitution, section 3 of
(26:40):
Amendment 14, and it appears tome, after I reviewed the facts,
that he engaged, donald Trump,engaged in insurrection,
rebellion, and therefore IDemocratic I know we're not a
political show, but I, theDemocratic Secretary of State,
(27:05):
is now going to exclude DonaldTrump from the ballot.
It feels political, it feelswrong, it feels arbitrary.
Help me, understand.
Professor Ilya Somin (27:18):
It is true in many states secretaries of
state make these initialdeterminations.
It's also true that both theseofficials are elected partisans,
democrats or Republicans.
If the Secretary of State gotto make a final, unreviewable
determination on that, then Ithink there would be basis for
this complaint that there's thisgreat political risk because
(27:38):
you could have a DemocraticSecretary of State just to
disqualify all the Republicans,or vice versa.
However, the way it actuallyworks is that those
determinations by secretaries ofstate can then be challenged in
court.
Judges at the state level, likeat the federal level, are in
various ways removed from thepolitical process.
Of course, if it is adetermination under the federal
(28:02):
constitution, then ultimately itcan be dealt with in the
federal courts as well.
You actually in the state ofMaine you did have the Maine
Secretary of State make adetermination that Donald Trump
is ineligible, but Trumpimmediately challenged that in
Maine State Court.
That decision or that case isfor the moment stayed because
(28:23):
they're waiting to see how thefederal Supreme Court will
resolve the Colorado case.
But it is simply not true thatpartisan officials would get the
final say on any of this.
They in some states would getan initial say.
They can make an initialdetermination, but a candidate
who is disqualified would havethe right to challenge it in
(28:45):
court.
Courts are a branch ofgovernment that, while certainly
not immune to bias, they're notpolitical officials or
partisans, in the same way thatsecretaries of state often are.
Bob Sewell (29:00):
Yeah, while there are partisan judges, I think out
there that the vast majority ofjudges I've ever encountered
are just regular Joe Smoles.
They go home to their familiesand they just are really
interested in the law and how itworks.
Now, I think that's animportant thing to know that,
(29:24):
hey, this is the process, thisis what we have.
This is the secretary of statemaking determinations and then
we engage in litigation.
We shouldn't be bothered,necessarily.
Is what you're saying that thesecretary of state, who may be a
partisan, has made the decision, provided that our system for
challenging that decision isadequate?
Professor Ilya Somin (29:44):
Yes.
I would add, obviously, alsothat the system varies by state.
It's not always the case that asecretary of state makes an
initial decision.
In the Colorado case, the casewas in the state courts from the
get-go, whereas in the otherhand, in Maine, it was ruling by
the secretary of state.
Different states have differentprocedures.
(30:06):
I would add that this is howelectoral qualifications have
been determined throughoutAmerican history.
In 2016, donald Trump supportersthemselves use this system.
They went to court in multiplestates to challenge the
eligibility of Ted Cruz, whoafter a time was Trump's main
(30:26):
rival for the GOP nomination.
They argued he was not anatural born citizen of the
United States, as the presidentmust be under the Constitution,
because, even though his parentswere US citizens when Cruz was
born, cruz was born in Canada,and Trump supporters they said
well, you have to be born withinthe territorial limits of the
(30:47):
US.
They went to court in a coupleof different states making that
argument.
The court eventually ruledagainst them and said correctly,
I think, that the Cruz waseligible.
But no one doubted, at least ofall the Trump supporters who
brought the case, that statecourts had the authority to make
that determination.
In principle, it could havebeen appealed all the way up to
(31:07):
the US Supreme Court, butultimately that didn't happen in
this instance.
But what's good for the TedCruz goose is also good for the
Donald Trump gander that thisprocess can be used to determine
electoral eligibility theeligibility of candidates for
(31:30):
the presidency.
Bob Sewell (31:31):
I had totally forgotten about that.
My wife is a dual citizen.
She was born in Canada as anaturalized Canadian citizen.
I was given her a hard timeabout that.
Hey, I told you you can't runfor president.
She's like that's okay by me.
I want to go back to the matter.
(31:53):
Then the Supreme Court is goingto review the Colorado decision
.
Does the Supreme Court get tosecond guess Colorado is finding
the fact that Donald Trumpengaged in insurrection or
rebellion?
Professor Ilya Somin (32:14):
I would say a couple of things about
that.
One is that finding is partlyfactual, but also it's partly
legal, based on definitions ofengaged in and definitions of
insurrection.
The issue of what counts as aninsurrection or what counts as
engaging in it and also whatcounts as a rebellion All of
(32:35):
those are legal questions thatthe court certainly can and
probably will review.
The factual findings about whatexactly Trump did on those days
and the like, those can alsopotentially be reviewed, but
only with a lot of deference.
I believe I'd have to check onthis.
(32:57):
This particular set of issues isnot one of my forties, not one
of my areas of expertise, but,as I understand it, a Pauwik
courts can only review purelyfactual findings for clear error
.
However, as a practical matter,I think most of what Donald
Trump did there the pure facts.
There's not a lot of disputeover them.
(33:17):
What is disputed is whetherwhat he did fits the definition
of engaging in insurrection,both in terms of what counts as
engaging in it, and also somepeople have argued that January
6th was not an insurrection.
It's interesting that DonaldTrump's brief before the Supreme
(33:39):
Court filed yesterday actuallydoes not make the argument that
January 6th was not aninsurrection.
They just make the argumentthat even if it was, trump
didn't engage in it.
But there are other people whohave made the claim that it was
not an insurrection.
Bob Sewell (33:55):
Fascinating.
So the court's going to have toreview the language of the
section 3, it's going to have toreview the definitions of
insurrection, the definitions ofrebellion, the definitions of
giving aid and support, allthese types of things, and then
(34:16):
make sure that the findings offact match those definitions.
Is that what you're saying?
Professor Ilya Somin (34:23):
Yes, that's right.
That's how appellate litigation, or often trial litigation as
well, work, that the court makesdeterminations about disputed
legal issues.
But ultimately the reason whyin a given case we care about
the legal issue, the definitionof words in a statute or in a
(34:43):
constitution is because of itsconnection to a set of facts and
, generally speaking, appellatecourts do not have to give any
deference to the trial courtwhen it comes to purely legal
issues the definition ofinsurrection, the definition of
engaged in whether thepresidency is an officer of the
United States, and so on.
(35:04):
But they do give deference onpurely factual matters.
Did a shoot be in the woodshed?
What did Donald Trump say onJanuary 6th?
Those kinds of questions.
There generally is a lot ofdeference, not complete
deference, but a lot ofdeference to the findings of the
trial court.
Bob Sewell (35:25):
All right.
So you're going to go to Vegas,you're going to take your last
paycheck and you're going to beton what the Supreme Court's
going to do.
What are you going to lay yourwage, your honor?
Professor Ilya Somin (35:43):
Yeah.
So these predictions are worthabout as much as you're not
paying for them.
But what I would say is this Ithink it's somewhat more likely
that the court will overturn theColorado Supreme Court than
that they will affirm it.
However, I think a lot ofpeople are overconfident about
(36:04):
the conclusion that many of themclaim, as the federal Supreme
Court will definitely overturnthe Colorado Supreme Court.
Some of that is based onpolitical calculations of what
they think the court's interestsare that the federal Supreme
Court will not want todisqualify a leading candidate
in an election or angerRepublicans and the like.
(36:26):
That might be true.
The federal Supreme Court mightindeed be influenced by that.
On the other hand, the extentthat they're influenced by
political considerations, theymight also reason one that
Donald Trump really is a greatminister of public, as he's
shown by his record.
He's the kind of person thatSection 3 was created to block.
(36:49):
And second, if you look at sortof what is the main accusation
against this court made by someof its critics?
I think the accusation isoverblown and often unfair, but
it is made.
It's that they're the MAGAcourt and they just do what
benefits the Republican Party orbenefits conservative causes.
And if they disqualify Trump,that accusation, that complaint
(37:12):
about the court to a wide extentgoes out the window.
It would be very hard forpeople to keep on saying that
with a straight face.
So, to the extent that thecourt is influenced by these
kinds of reputationalconsiderations, there's ones
that cut in favor of upholdingthe Colorado Supreme Court as
well as perhaps ones that cutagainst.
To the extent that the court isinfluenced just by legal
(37:34):
arguments, and they should beideally focused only on those
legal arguments rather than onreputational considerations or
political ones.
I think it is true the Trumpside has the advantage that they
have like five or six differentways by which they can win.
On the other hand, with onepartial exception, all of them
are really bad arguments.
(37:56):
That would create veryproblematic precedents.
And if the Supreme Court were toendorse them and there is a
possible exception on the issueof engaged in which there I
think there is a somewhat betterargument, although ultimately
still, I think, fallacious thecourt also could try to say that
(38:16):
the problem was that Trumpdidn't get enough due process in
the Colorado courts.
In that event you could issue afairly narrow ruling, but then
the issue would be likely tocome back to the Supreme Court
very quickly, because in anotherstate or even in Colorado
itself, he could be disqualifiedagain, but with just somewhat
(38:38):
greater process happening.
So I think it could very wellbe and it's more likely to not
that the federal Supreme Courtwill overturn the Colorado
Supreme Court, but I think thatis much less of a foregone
conclusion than a lot of peoplethink it is.
I admit I will be proven to bewrong about this if you get a
(39:01):
unanimous or nearly unanimousruling in favor of Trump.
But if you get a close five,four, six, three decisions,
something like that, even ifit's in favor of Trump, I think
that will show that the issuewas not as much of a foregone
conclusion as some people claim.
Bob Sewell (39:18):
Yeah, I mean to be honest.
If I was going to Vegas, Idon't know what I'd laid my
money on.
It's a really hard thing, thiscase, because what comes out of
this case, the the decision thatis made, could ultimately
change the direction of theUnited States in many respects
(39:41):
and how we interpret Section 3and what type of politician we
have in the future.
I think it could be a dangerousprecedent, whatever comes up.
Either way, the court needs tobe very circumspect, in my
opinion, and cast as an eyetoward the future when they make
(40:05):
decisions, whatever thatdecision may be.
And the one more thing that Iwant to talk about that I think
is interesting, that we'll callit a day.
The Fort Colorado makes adecision, says Trump.
14th Amendment applies.
(40:27):
Section 3 applies.
The Supreme Court says Colorado, you're free to make that
decision.
That doesn't necessarily meanthat Arizona has made that
decision.
That doesn't necessarily meanCalifornia or anywhere else has
made that decision, am I right?
Professor Ilya Somin (40:46):
A lot depends on how the federal
Supreme Court reasons it, but ifthe federal Supreme Court does
uphold the Colorado SupremeCourt, it would most likely be
on the grounds that Section 3applies to Trump.
Trump engaged in theinsurrection and therefore he's
disqualified, and thereforedoubt, I think, would bar other
(41:07):
states from saying no, actuallyTrump was not an officer in the
United States, or no, he didn'tengage in insurrection, or no,
january 6 was not aninsurrection at all.
There could still be somevariation between states,
because not all states have alaw like Colorado's which says
that to be on the ballot for aparticular office, you have to
(41:30):
be constitutionally eligible forthe office, and there's
particularly variation aboutthat when it comes to being on
the ballot for a primary asopposed to being on the ballot
for the general election.
But I think the bottom line isthat if Trump were, if the
Supreme Court were to uphold theColorado ruling, then Trump
(41:52):
would be barred from the ballotin enough states that he would
have virtually no chance ofwinning the electoral college
and thereby winning the election, and though he could
potentially end up on the ballotin some states where he's still
the Republican Party'snominated.
Bob Sewell (42:14):
Professor Ilya Solin , thank you for coming on, thank
you, thank you.
Okay, so we're gonna send thisout.
When's our next?
When does this go?
Professor Ilya Somin (42:33):
Six weeks.
Bob Sewell (42:34):
I think Two weeks.
So about two weeks we'll airthis.
So I don't think the court'sgonna have decided the order is
on February 8.
Professor Ilya Somin (42:46):
So this will be yeah.
So we'll not have been decidedyet.
Bob Sewell (42:54):
So it looks like.
All right, we won't be decided.
Okay, perfect.
So we'll send you the podcastwhen we get it all ready and
send it off, and I really thankyou for coming on.
Professor Ilya Somin (43:07):
It's super nice of you.
Thank you so much for having me.
I really appreciate it.
Thank you.
Bob Sewell (43:12):
Take care.
Thanks for listening to.
Is that Even Legal?
Remember this isn't legaladvice.
If you have a legal questionfor yourself, reach out to an
attorney.
Remember that we're fun, we'relovable and we are here to help
you To my listeners in 62countries across the world.
If you have something you wantto explore, email us at
(43:34):
produceratevenlegalcom and don'tbe shy about leaving a review
for this podcast on yourfavorite podcast forum.
See you next time.
It's a phrase from popular movies.
It's also a question that comesup in our daily life.
The question is is that evenlegal?
We talk about the things thatdrive you crazy, the things you
won't believe and the things youneed to know and understand.
I'm attorney Bob Sewell andthis is the podcast.
Is that Even Legal?
(00:20):
Let's get started.
Today on the podcast is IlyaSolman.
Ilya is a professor of law atGeorge Mason University.
He is a constitutional expert.
He is the B Kenneth Simon Chairin Constitutional Studies at
(00:45):
the Cato Institute.
His research focuses onconstitutional law, property law
and democratic theory andfederalism.
Welcome to the show.
Professor Ilya Somin (00:57):
Thank you for having me.
Bob Sewell (01:00):
I wanted to have you on the show because I'm really
interested in what we've beendealing with here in this
country and right before theSupreme Court right now is the
case of whether or not DonaldTrump can be on the ballot in
certain states that have chosento exclude him from the ballot.
(01:24):
And the most curious one ofthese cases to me is the
Colorado case, and what they'vedone in Colorado is they've used
the insurrection clause of the14th Amendment and they've
reasoned that Donald Trump,because of the activities that
happened on January 6th, is nolonger qualified to be on their
(01:49):
ballot.
And it was absolutelyfascinating to me and I want to
read to you the 14th Amendment,section 3, the insurrection
clause, and then let's talkabout it and about what's going
on here and whether or not wethink that this case in Colorado
(02:11):
or anywhere else that it popsup has any feet.
So here's what it says noperson shall be a senator or
representative in Congress or aelector of president and vice
president, or hold any office,civil or military, under the
(02:32):
United States or under any state, who have been previously taken
a note as a member of Congressor as an officer of the United
States or as a member of anystate legislature or as an
executive, a judicial officer ofany state, to support the
Constitution of the UnitedStates, shall have engaged in
insurrection or rebellionagainst the same or given aid or
(02:57):
comfort to the enemies thereof.
The Congress may, by a vote oftwo thirds of each House, remove
such disability.
There's the insurrection clause.
It came after the Civil Warright and it was in their minds.
(03:21):
When this went through and itwas voted on and became a
constitutional amendment, intheir minds, were these
insurrectionists?
Now, here we are, theseinsurrectionists.
You know the South right Now,here we are.
It's 2024.
(03:41):
What do we think?
Do we think this case isimportant, one at the Colorado,
at the at this Colorado case isimportant, that this is pretty
important.
Professor Ilya Somin (03:57):
Yeah, so it definitely is important.
I don't know which way it'sgoing to come out, but I think
for fairly obvious reasons.
It is important because we'retalking about the front runner
for the nomination of one of thetwo major parties and we're
also talking about the firstpresident American history who,
after he lost an election,instead of conceding his defeat,
(04:17):
he instead tried to use acombination of force and fraud
to stay in power like a tinhornthird world dictator, which is
why this case arose.
So I think it's important.
It's fairly obvious, whateveryou think about how it should
come out.
Bob Sewell (04:35):
So what does it mean ?
Here we have the insurrectionclause and you have been written
on this subject.
I saw your article in ReasonMagazine on the Volcker
conspiracy, which is aconservative, civil libertarian
place on the internet andmagazine on the internet.
(04:56):
What does it mean to be aninsurrection?
Professor Ilya Somin (05:04):
So there is some debate about what it
qualifies or what can qualify asan insurrection.
There's a lot of evidencecompiled by Mark Draber, a
prominent legal scholar, whichsays that an insurrection at the
time, in the 1860s, wasactually defined pretty broadly
to include any kind of forcibleresistance to the enforcement of
(05:28):
a federal law, so long as thatresistance was quote for a
public purpose, which in plainEnglish means that you oppose
the law because you think it'swrong or unjust or bad policy,
rather that you're violating thelaw for a narrow self-interest
like, say, a drug dealerviolating the drug laws because
he wants to make some money.
(05:49):
But I don't think you need adefinition of insurrection that
broad to conclude that whathappened on January 6 was an
insurrection, even under arelatively narrow and intuitive
modern definition of aninsurrection, which says that an
insurrection is just an attemptto use force to seize power and
take control of the powers ofthe government.
(06:10):
January 6 qualifies because thepeople who attacked that day.
They sought to seize power forDonald Trump and allow him to
retain it even after he won theelection and thereby take away
the most powerful office in theland from a person who would
actually won the election JoeBiden.
(06:32):
So under that narrow definitionof insurrection, which I think
is the intuitive one for mostpeople today, what happened on
January 6 still qualifies underthe broad originalist definition
.
Bob Sewell (06:46):
It even more obviously qualifies yeah, and I
think that gentleman who youjust spoke of I can't remember
his name he talked about moregreater.
He talked about the, if Iremember right, the whiskey
rebellion, which at the time wasknown as the whiskey
insurrection, and he talkedabout how look, these are just a
(07:06):
group of farmers and thesefarmers didn't want to pay the
whiskey tax and they rose up tosay we're not going to pay it.
And you know, the Washingtoncame in and they watched the
whiskey rebellion and said no,you're paying this tax.
And so and he reasons rightthat that if that was an extra
(07:30):
interaction, then certainly thiswas an interaction, because
they're trying to stop what youknow, the, the happenings of
Congress at that moment.
Professor Ilya Somin (07:43):
A couple of points about that.
One is in section trajectorysays insurrection or rebellion.
So if somebody is a rebellionbut not an insurrection, it
still qualifies.
The whiskey rebellion and alsoShay's rebellion in the 1780s,
those were the two episodesprior to the civil war which
were generally labeled asrebellions in American history.
(08:05):
Both of them featured levels ofviolence actually roughly
comparable to what happened onJanuary 6th.
When you talk about the numberof people killed or injured, the
number of people involved inthe uprising and so forth and in
terms of trying to seizegovernment power, I think what
happened on January 6th was moreclearly an attempt to seize
(08:26):
government power than thewhiskey rebellion, which wasn't
saying you know, the leader ofthe whiskey rebellion is the
actual president.
He was just saying you know, wewant to block the federal
government from by force, fromcollecting the whiskey tax.
And in the case of Shay'srebellion it was a group of
mostly rural people inMassachusetts in the 1780s
saying you know, we don't wantto pay our debts.
(08:48):
You know, we want debt forforgiveness and for cancellation
.
And they rebelled against theprimarily in the first instance
of the state government for thatpurpose.
Here you have actually moreclearly an attempt to seize
power than in either of thosetwo instances.
Bob Sewell (09:11):
When the Colorado court got received this case it
was sort of interesting to mehow it went about the case the
lower court, the trial court.
The first thing that I foundinteresting was there wasn't a
trial right.
If I remember right, there wasactually per se, there wasn't
(09:36):
fact finding.
The Colorado court took atraditional notice of Congress
as findings.
And the other thing that wasinteresting was the Colorado
Court said that the lower court,which was reversed by the
Supreme Court of Colorado, thelower court said well, we don't,
(09:59):
we think that he engaged ininsurrection, but we don't think
that.
It that the section three thequalifies, because we don't
think that the president is anofficer in the United States.
That one, surprisingly, thatlatter one, what do you think of
that one?
Professor Ilya Somin (10:18):
So first, I note there was in fact the
trial lasted five days.
Both sides were able to presentvarious kinds of evidence.
The court did take judicialnotice, among other evidence of
the report of the CongressionalJanuary 6 Commission, but they
did not simply rely on thatevidence without considering,
you know, other types ofevidence as well.
(10:39):
It is true that when the trialcourt completed its trial, it
then issued a decision where thejudge concluded she said that
there was an insurrection, trumpengaged in the insurrection,
but then she also ruled thatTrump was not covered by section
(10:59):
three because she said thepresidency of the United States
is not an officer of the UnitedStates and therefore you know,
on this reasoning, if you're alow level federal bureaucrat and
you're engaged in insurrection,then you're disqualified under
(11:21):
section three.
But if you hold the highest andmost powerful office in the
land, then you know you engagein insurrection, then you're
home free as far as sectionthree is concerned.
I think this argument is afairly weak argument.
It was rightly overturned bythe Colorado Supreme Court, but
(11:42):
it has attracted the enthusiasmof a people who would like the
Supreme, the federal SupremeCourt, to overturn the Colorado
Supreme Court but recognize thatmaybe the federal Supreme Court
would want a way to do thatwhere they don't have to get
into the details of what wasgoing on January 6 and whether
it was an interaction and thensecond, this is the kind of
(12:03):
argument that sort of lawyerslike but that make the legal
profession look ridiculous andhateful to ordinary people
because it leads to a conclusionwhich is absurd and ridiculous.
But you can try to support it byvarious counterintuitive
textual inferences, like, forinstance, you can look not into
(12:27):
section three but to theoriginal Constitution and you
can find various passages which,depending on how you interpret
them, suggest that the presidentis not an officer.
In every United States, forinstance, there's a provision
which says the president mustcommission all office United
States, and people say aha, buthe can't commission himself and
so therefore you know that showsthat the president is not an
(12:49):
officer.
Or you look at section threeitself and you say, well, some
other offices are enumerated,like members of Congress,
members, the Electoral College,but the presidency is not
enumerated.
So that proves that it wassupposed to be excluded, for
reasons we can talk about.
I think all these argumentsthat ultimately do not work and
(13:10):
they also go against some basicprinciples of legal
interpretation, but it's thekind of convoluted argument that
is attractive to the legal mind, or at least to many of my
fellow lawyers, and that's whyyou know it has some legs in the
Supreme Court litigation, andit did ultimately persuade the
trial judge.
(13:30):
In this case, though, she gotoverruled by the by the Colorado
Supreme Court.
Bob Sewell (13:37):
And I, I, when I heard that, that reasoning, that
from the judge, I wasabsolutely floored.
What do you mean?
The president?
you, know, I could go to hiswebsite will send the offices of
the president United States.
What do you mean?
He's not holding an officewithin the United States.
(13:58):
He's holding an office withinthe United States and I found it
.
It's a little bit absurd, alittle bit, and it's.
You're right.
It's the type of thing thatmakes us look bad as lawyers.
You know, if you, if it takes25,000 pages to explain, while
the office of the presidentUnited States isn't really an
(14:19):
office of the president UnitedStates.
Yeah, I think you've lost theargument.
But one thing that'sinteresting about section three,
that is, you don't have tonecessarily engage in
insurrection or rebellion.
It says, or given aid orcomfort to the enemies thereof.
(14:39):
You could just give aid andcomfort, whatever aid and
comfort is, and not actuallyengage in the rebellion itself.
Did my reading that right?
Professor Ilya Somin (14:50):
So that phrase certainly is in there.
There's some controversy overwho qualifies as an enemy of the
United States, and some arguethat enemies of the United
States unlike insurrectionistenemies and it states are only
foreign enemies, like a foreignpower that we might be at war
with.
On the other hand, there isalso argument that there can be
(15:11):
domestic enemies in the UnitedStates, including
insurrectionist.
If you define aid and comfortrelatively broadly, then you
know what Trump did definitelyqualifies, perhaps even if you
define aid and comfortrelatively narrowly, assuming
that enemies United Statesincludes domestic enemies and
not just foreign enemies.
I think there is, you know, somedanger in having a very broad
(15:35):
definition of aid and comfort,because in that situation you
could say, a member of Congresswho criticizes the government's
conduct of a war while the waris going on might be considered
as a giving aid and comfort tothe enemy and therefore he's
disqualified from office, and Iwouldn't want to go that far.
(15:55):
Fortunately, in the case ofDonald Trump, we don't need to
go anywhere near that far and Ithink there's a strong argument
that he engaged in theinsurrection and not merely gave
aid and comfort.
But it is true that if domesticenemies count as the kind of
enemies that we are talkingabout, then you know he, he
(16:16):
surely did give aid and comfortto them.
Bob Sewell (16:19):
Let me, let me push back on you for a minute.
Not, okay, let me play devil'sadvocate with you.
Section three is comingimmediately after the.
The is coming immediately afterthe Civil War.
Right, it's pretty obvious thatthey're worried about these
people who are in Congress, whoare in state legislatures and
(16:43):
and they were part of this body,you know, that makes laws, and
were here to support and engagein this.
You know this DemocraticRepublic.
And then they, they flipped andthey said we're going to take
up arms and that again.
(17:03):
So that's pretty obvious thatthat's an insurrection, that's a
rebellion and and we don't wantthese people back, like we
fought a war because of therhetoric, the politics, the,
your efforts to stay empowered.
We fought a war for that.
(17:25):
We don't want you back, guys,somehow you're repentant.
In this case, we're going toallow the, the Congress, to
overturn that with two thirdsmajority vote.
Okay, now fast forward.
And we got here today's day,president Trump.
(17:49):
He certainly is engaging indangerous political rhetoric
with him when he talks aboutwell, I won the election.
Joe Biden didn't lose the win,the election, he lost the
election.
He's engaging this.
That's part of his firstamendment, right?
But then he goes to this rallyon January 6th, and he doesn't
(18:17):
say.
What he doesn't say is go tothe Capitol, storm the Capitol,
smash the doors down, smash thewindows in hang Mike Pence and
assassinate Nancy Pelosi.
He doesn't say these things, soI think, is it enough then?
(18:43):
Is it enough?
Professor Ilya Somin (18:45):
Yeah.
So I do think the best argumentthe other side in this case has
is the idea that even if therewas an insurrection, which are
pretty clearly was maybe Trumpdidn't engage in it.
That said, I think there isnone.
The West Australian case thathe did for a couple of reasons.
One is, as the Colorado SupremeCourt found, we have to focus
(19:08):
not just on what he said at thatrally but on what he said and
did before and afterwards.
And, as the Colorado SupremeCourt explained, there was a lot
of things that he said beforebeginning weeks earlier, that
encourage violence by barriersof his supporters, that he had
good reason to know where thekinds of people who were likely
to be violent groups, like theProud Boys, for instance, that
(19:31):
were later heavily involved inthe attack on the Capitol.
Second, when you look at thespeech as all speech, you have
to interpret it in context, andthose statements about fight
like hell in the wake were inthe context of a mob that he
himself had primed for violencebefore, and that makes it
different than say if someone issitting on a bar stool saying I
(19:53):
got a fight like hell for mypolitical principles or
something like that.
And finally, I think perhaps thesingle most damning part is not
what he did before the rally ordoing it, but what he did
afterwards, when he went back tothe White House and they were
attacking the Capitol.
During that time, he wascalling up members of the House
(20:14):
and Senate, urging them toreject the electoral votes and
keep them in power, and that iseffectively using the attack on
the Capitol as leverage to tryto get Congress to do what he
wanted.
So he was essentially thereworking in cahoots with the
attackers.
Rather than trying to stop theattack, or even rather than just
(20:36):
sit and round and do nothing,he was using the attack as
leverage to achieve his purposes, which, of course, were also
the purposes of the attackersthemselves.
And that, I think, is the mostqueer aspect of what he did in
terms of engaging ininsurrection.
Bob Sewell (20:54):
Yeah.
Would it be enough if he tosimply do nothing?
Would that be enough?
Giving aid and comfort Well,I'm not going to send in the
National Guard, I'm not going tosupport the police for several
hours Would that be enough?
Would that be giving aid andcomfort to the enemies there?
(21:14):
Would that be engaging ininsurrection?
If I, just if Trump did nothingto quash it?
Professor Ilya Somin (21:22):
So for an ordinary person to do nothing,
clearly that would not beengaging in insurrection or even
giving aid and comfort.
For the president, unitedStates, things are more
complicated, because he has aduty to suppress insurrections
against the United States and itlike so.
If he chooses not to, you canargue that that gives a comfort
in a way that would not be thecase for an ordinary person, but
(21:45):
the court may not even resolvethat issue in this case, because
Trump did do more than merelydo nothing or sit around or
whatnot.
He had incited the insurrectionbeforehand and while it was
going on he was trying to use itas leverage to achieve his
purposes of illegally seizingpower that did not belong to him
(22:06):
for another term, and thereforethere's no need in this case to
even really consider the issueof whether, in some
circumstances, doing nothing canbe a form of giving aid and
comfort, because here we havedoing something.
Bob Sewell (22:21):
Let me ask you a question.
Let's change the changedirections a little bit.
One of the things that isreally odd to me as an attorney
is section three doesn't give aprocedure.
It doesn't give a roadmap.
Now there's a lot in theConstitution that doesn't give
(22:42):
procedures.
In fact, the Constitutiondoesn't give procedures anywhere
.
I've heard it referred to someof this that they are self
executing right.
So everyone knows that involuntary servitude, slavery you
don't need to have a proceduredefined as someone is forcing
(23:06):
another into involuntaryservitude.
Professor Ilya Somin (23:08):
There's no procedure necessary.
Bob Sewell (23:11):
If you force someone into slavery, they're in
slavery.
That's illegal, that's wrong,that's unconstitutional.
But we don't have it here.
And it seems like here it's alittle bit more wishy-washy,
because we have to definewhether or not someone engaged
in an interaction or rebellion,whether or not someone's an
(23:32):
enemy of the United States andwhether or not the acts were
giving aid and comfort.
But we don't have thatprocedure.
Are you bothered by this?
Professor Ilya Somin (23:48):
Not particularly.
No, though obviously it is anissue to raise the litigation as
you suggested.
There are many parts of theConstitution where there's no
specific procedure laid out forhow to adjudicate or how to make
factual determinations and it'snot spelled out who gets to
define the words.
I think a key backgroundassumption of all or most of
(24:11):
these parts of the Constitutionor specific procedures aren't
laid out is that in the firstinstance it has to be dealt with
by whatever state and federalofficials normally deal with
this area of policy, in thiscase electoral qualifications
and then if one side or theother thinks that it was handled
illegally, then they can go tocourt.
(24:31):
They could potentially go tofederal court or to state court
and those courts will then usethe ordinary procedures of civil
litigation to make factualdeterminations and legal rulings
.
And where there is a federalconstitutional issue, obviously
a determination by a state courtcould potentially wait or be
(24:54):
challenged in federal court, inthis case the US Supreme Court.
So it is true it's possibleofficials can mishandle the
definition of insurrection orthey can mishandle factual
determinations that are relevantand the like, and it is also
true that in different states orin different lower federal
(25:14):
courts you could get differentconclusions, but that happens in
constitutional litigation allthe time, and that's one of the
reasons why we have a SupremeCourt where, eventually, issues
like this can be appealed.
So if you need a nationwideuniform determination as it
ain't in this case you do thenthat can happen.
(25:35):
But there's nothing unusualabout provisions which are self
enforcing, that is, you don'tneed additional congressional
legislation, but at the sametime, the Constitution doesn't
spell out the precise procedureby which the legal issue will be
resolved.
Bob Sewell (25:55):
Well, this is what bothers a lot of people who are
looking at this from the outside, because in many states the
Secretary of State decides whoqualified for the ballot.
The Secretary of State makes adetermination.
They look at the did they getthe right number of signatures?
Did they fill out the rightpaperwork at the right time?
(26:18):
I never ran for office and I'mnot an election attorney, but I
know that those types ofdeterminations are made from the
Secretary of State.
And why couldn't we?
You know, in this case we couldhave, as a Secretary of State,
that could say hey, I reviewedthe Constitution, section 3 of
(26:40):
Amendment 14, and it appears tome, after I reviewed the facts,
that he engaged, donald Trump,engaged in insurrection,
rebellion, and therefore IDemocratic I know we're not a
political show, but I, theDemocratic Secretary of State,
(27:05):
is now going to exclude DonaldTrump from the ballot.
It feels political, it feelswrong, it feels arbitrary.
Help me, understand.
Professor Ilya Somin (27:18):
It is true in many states secretaries of
state make these initialdeterminations.
It's also true that both theseofficials are elected partisans,
democrats or Republicans.
If the Secretary of State gotto make a final, unreviewable
determination on that, then Ithink there would be basis for
this complaint that there's thisgreat political risk because
(27:38):
you could have a DemocraticSecretary of State just to
disqualify all the Republicans,or vice versa.
However, the way it actuallyworks is that those
determinations by secretaries ofstate can then be challenged in
court.
Judges at the state level, likeat the federal level, are in
various ways removed from thepolitical process.
Of course, if it is adetermination under the federal
(28:02):
constitution, then ultimately itcan be dealt with in the
federal courts as well.
You actually in the state ofMaine you did have the Maine
Secretary of State make adetermination that Donald Trump
is ineligible, but Trumpimmediately challenged that in
Maine State Court.
That decision or that case isfor the moment stayed because
(28:23):
they're waiting to see how thefederal Supreme Court will
resolve the Colorado case.
But it is simply not true thatpartisan officials would get the
final say on any of this.
They in some states would getan initial say.
They can make an initialdetermination, but a candidate
who is disqualified would havethe right to challenge it in
(28:45):
court.
Courts are a branch ofgovernment that, while certainly
not immune to bias, they're notpolitical officials or
partisans, in the same way thatsecretaries of state often are.
Bob Sewell (29:00):
Yeah, while there are partisan judges, I think out
there that the vast majority ofjudges I've ever encountered
are just regular Joe Smoles.
They go home to their familiesand they just are really
interested in the law and how itworks.
Now, I think that's animportant thing to know that,
(29:24):
hey, this is the process, thisis what we have.
This is the secretary of statemaking determinations and then
we engage in litigation.
We shouldn't be bothered,necessarily.
Is what you're saying that thesecretary of state, who may be a
partisan, has made the decision, provided that our system for
challenging that decision isadequate?
Professor Ilya Somin (29:44):
Yes.
I would add, obviously, alsothat the system varies by state.
It's not always the case that asecretary of state makes an
initial decision.
In the Colorado case, the casewas in the state courts from the
get-go, whereas in the otherhand, in Maine, it was ruling by
the secretary of state.
Different states have differentprocedures.
(30:06):
I would add that this is howelectoral qualifications have
been determined throughoutAmerican history.
In 2016, donald Trump supportersthemselves use this system.
They went to court in multiplestates to challenge the
eligibility of Ted Cruz, whoafter a time was Trump's main
(30:26):
rival for the GOP nomination.
They argued he was not anatural born citizen of the
United States, as the presidentmust be under the Constitution,
because, even though his parentswere US citizens when Cruz was
born, cruz was born in Canada,and Trump supporters they said
well, you have to be born withinthe territorial limits of the
(30:47):
US.
They went to court in a coupleof different states making that
argument.
The court eventually ruledagainst them and said correctly,
I think, that the Cruz waseligible.
But no one doubted, at least ofall the Trump supporters who
brought the case, that statecourts had the authority to make
that determination.
In principle, it could havebeen appealed all the way up to
(31:07):
the US Supreme Court, butultimately that didn't happen in
this instance.
But what's good for the TedCruz goose is also good for the
Donald Trump gander that thisprocess can be used to determine
electoral eligibility theeligibility of candidates for
(31:30):
the presidency.
Bob Sewell (31:31):
I had totally forgotten about that.
My wife is a dual citizen.
She was born in Canada as anaturalized Canadian citizen.
I was given her a hard timeabout that.
Hey, I told you you can't runfor president.
She's like that's okay by me.
I want to go back to the matter.
(31:53):
Then the Supreme Court is goingto review the Colorado decision
.
Does the Supreme Court get tosecond guess Colorado is finding
the fact that Donald Trumpengaged in insurrection or
rebellion?
Professor Ilya Somin (32:14):
I would say a couple of things about
that.
One is that finding is partlyfactual, but also it's partly
legal, based on definitions ofengaged in and definitions of
insurrection.
The issue of what counts as aninsurrection or what counts as
engaging in it and also whatcounts as a rebellion All of
(32:35):
those are legal questions thatthe court certainly can and
probably will review.
The factual findings about whatexactly Trump did on those days
and the like, those can alsopotentially be reviewed, but
only with a lot of deference.
I believe I'd have to check onthis.
(32:57):
This particular set of issues isnot one of my forties, not one
of my areas of expertise, but,as I understand it, a Pauwik
courts can only review purelyfactual findings for clear error
.
However, as a practical matter,I think most of what Donald
Trump did there the pure facts.
There's not a lot of disputeover them.
(33:17):
What is disputed is whetherwhat he did fits the definition
of engaging in insurrection,both in terms of what counts as
engaging in it, and also somepeople have argued that January
6th was not an insurrection.
It's interesting that DonaldTrump's brief before the Supreme
(33:39):
Court filed yesterday actuallydoes not make the argument that
January 6th was not aninsurrection.
They just make the argumentthat even if it was, trump
didn't engage in it.
But there are other people whohave made the claim that it was
not an insurrection.
Bob Sewell (33:55):
Fascinating.
So the court's going to have toreview the language of the
section 3, it's going to have toreview the definitions of
insurrection, the definitions ofrebellion, the definitions of
giving aid and support, allthese types of things, and then
(34:16):
make sure that the findings offact match those definitions.
Is that what you're saying?
Professor Ilya Somin (34:23):
Yes, that's right.
That's how appellate litigation, or often trial litigation as
well, work, that the court makesdeterminations about disputed
legal issues.
But ultimately the reason whyin a given case we care about
the legal issue, the definitionof words in a statute or in a
(34:43):
constitution is because of itsconnection to a set of facts and
, generally speaking, appellatecourts do not have to give any
deference to the trial courtwhen it comes to purely legal
issues the definition ofinsurrection, the definition of
engaged in whether thepresidency is an officer of the
United States, and so on.
(35:04):
But they do give deference onpurely factual matters.
Did a shoot be in the woodshed?
What did Donald Trump say onJanuary 6th?
Those kinds of questions.
There generally is a lot ofdeference, not complete
deference, but a lot ofdeference to the findings of the
trial court.
Bob Sewell (35:25):
All right.
So you're going to go to Vegas,you're going to take your last
paycheck and you're going to beton what the Supreme Court's
going to do.
What are you going to lay yourwage, your honor?
Professor Ilya Somin (35:43):
Yeah.
So these predictions are worthabout as much as you're not
paying for them.
But what I would say is this Ithink it's somewhat more likely
that the court will overturn theColorado Supreme Court than
that they will affirm it.
However, I think a lot ofpeople are overconfident about
(36:04):
the conclusion that many of themclaim, as the federal Supreme
Court will definitely overturnthe Colorado Supreme Court.
Some of that is based onpolitical calculations of what
they think the court's interestsare that the federal Supreme
Court will not want todisqualify a leading candidate
in an election or angerRepublicans and the like.
(36:26):
That might be true.
The federal Supreme Court mightindeed be influenced by that.
On the other hand, the extentthat they're influenced by
political considerations, theymight also reason one that
Donald Trump really is a greatminister of public, as he's
shown by his record.
He's the kind of person thatSection 3 was created to block.
(36:49):
And second, if you look at sortof what is the main accusation
against this court made by someof its critics?
I think the accusation isoverblown and often unfair, but
it is made.
It's that they're the MAGAcourt and they just do what
benefits the Republican Party orbenefits conservative causes.
And if they disqualify Trump,that accusation, that complaint
(37:12):
about the court to a wide extentgoes out the window.
It would be very hard forpeople to keep on saying that
with a straight face.
So, to the extent that thecourt is influenced by these
kinds of reputationalconsiderations, there's ones
that cut in favor of upholdingthe Colorado Supreme Court as
well as perhaps ones that cutagainst.
To the extent that the court isinfluenced just by legal
(37:34):
arguments, and they should beideally focused only on those
legal arguments rather than onreputational considerations or
political ones.
I think it is true the Trumpside has the advantage that they
have like five or six differentways by which they can win.
On the other hand, with onepartial exception, all of them
are really bad arguments.
(37:56):
That would create veryproblematic precedents.
And if the Supreme Court were toendorse them and there is a
possible exception on the issueof engaged in which there I
think there is a somewhat betterargument, although ultimately
still, I think, fallacious thecourt also could try to say that
(38:16):
the problem was that Trumpdidn't get enough due process in
the Colorado courts.
In that event you could issue afairly narrow ruling, but then
the issue would be likely tocome back to the Supreme Court
very quickly, because in anotherstate or even in Colorado
itself, he could be disqualifiedagain, but with just somewhat
(38:38):
greater process happening.
So I think it could very wellbe and it's more likely to not
that the federal Supreme Courtwill overturn the Colorado
Supreme Court, but I think thatis much less of a foregone
conclusion than a lot of peoplethink it is.
I admit I will be proven to bewrong about this if you get a
(39:01):
unanimous or nearly unanimousruling in favor of Trump.
But if you get a close five,four, six, three decisions,
something like that, even ifit's in favor of Trump, I think
that will show that the issuewas not as much of a foregone
conclusion as some people claim.
Bob Sewell (39:18):
Yeah, I mean to be honest.
If I was going to Vegas, Idon't know what I'd laid my
money on.
It's a really hard thing, thiscase, because what comes out of
this case, the the decision thatis made, could ultimately
change the direction of theUnited States in many respects
(39:41):
and how we interpret Section 3and what type of politician we
have in the future.
I think it could be a dangerousprecedent, whatever comes up.
Either way, the court needs tobe very circumspect, in my
opinion, and cast as an eyetoward the future when they make
(40:05):
decisions, whatever thatdecision may be.
And the one more thing that Iwant to talk about that I think
is interesting, that we'll callit a day.
The Fort Colorado makes adecision, says Trump.
14th Amendment applies.
(40:27):
Section 3 applies.
The Supreme Court says Colorado, you're free to make that
decision.
That doesn't necessarily meanthat Arizona has made that
decision.
That doesn't necessarily meanCalifornia or anywhere else has
made that decision, am I right?
Professor Ilya Somin (40:46):
A lot depends on how the federal
Supreme Court reasons it, but ifthe federal Supreme Court does
uphold the Colorado SupremeCourt, it would most likely be
on the grounds that Section 3applies to Trump.
Trump engaged in theinsurrection and therefore he's
disqualified, and thereforedoubt, I think, would bar other
(41:07):
states from saying no, actuallyTrump was not an officer in the
United States, or no, he didn'tengage in insurrection, or no,
january 6 was not aninsurrection at all.
There could still be somevariation between states,
because not all states have alaw like Colorado's which says
that to be on the ballot for aparticular office, you have to
(41:30):
be constitutionally eligible forthe office, and there's
particularly variation aboutthat when it comes to being on
the ballot for a primary asopposed to being on the ballot
for the general election.
But I think the bottom line isthat if Trump were, if the
Supreme Court were to uphold theColorado ruling, then Trump
(41:52):
would be barred from the ballotin enough states that he would
have virtually no chance ofwinning the electoral college
and thereby winning the election, and though he could
potentially end up on the ballotin some states where he's still
the Republican Party'snominated.
Bob Sewell (42:14):
Professor Ilya Solin , thank you for coming on, thank
you, thank you.
Okay, so we're gonna send thisout.
When's our next?
When does this go?
Professor Ilya Somin (42:33):
Six weeks.
Bob Sewell (42:34):
I think Two weeks.
So about two weeks we'll airthis.
So I don't think the court'sgonna have decided the order is
on February 8.
Professor Ilya Somin (42:46):
So this will be yeah.
So we'll not have been decidedyet.
Bob Sewell (42:54):
So it looks like.
All right, we won't be decided.
Okay, perfect.
So we'll send you the podcastwhen we get it all ready and
send it off, and I really thankyou for coming on.
Professor Ilya Somin (43:07):
It's super nice of you.
Thank you so much for having me.
I really appreciate it.
Thank you.
Bob Sewell (43:12):
Take care.
Thanks for listening to.
Is that Even Legal?
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