December 20, 2023 • 14 mins
A Colorado ruling has knocked Trump off the ballot. What does this mean and what will eventually come of this?
Andrew Cherkasky, former federal prosecutor and legal expert, talks to Jack Armstrong!
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Speaker 1 (00:00):
This is a first of its kind ruling the Colorado
Supreme Court determining that former President Donald Trump is ineligible
to be on Colorado's Republican primary ballot next year because
of his efforts to overturn that twenty twenty election. The
court accepted the argument that Trump engaged in insurrection in
violation of the Fourteenth Amendment. Lawsuits like this have come
(00:21):
before courts in seven states, but this is the first
time that President Trump has been deemed ineligible for office.
But as you can imagine, this is not the final word,
the Trump campaign, adding that they will swiftly appeal this ruling.
Speaker 2 (00:36):
Yeah, it is historic, and one of the reasons it's
historic not only has it never been done before for
like a minor candidate, it's being done now for a
guy that's running away with the nomination for one of
the two major parties and is leading in most polls
if the presidential election were held today. So it's pretty historic,
i'd say. Andrew Scherkaski joins this. He's a former federal prosecutor,
(01:00):
military veteran with decades of experience in law, and you
might see him as a trusted legal expert. On CNN
Fox News many other places. He has contributed national editorials
for The USA Today, The Hill. He's been cited for
his expertise in The New York Times, The Washington Post,
Vice Newsweek, the Associated President, manymore. So, just all around
well liked and respected guy. Guess Andrew. Welcome to the
(01:22):
Armstrong and Getty Show.
Speaker 1 (01:23):
How you doing well?
Speaker 3 (01:25):
Thank you so much for having me in. What a
nice introduction.
Speaker 2 (01:28):
Yeah, no problem, And let's start with Because the ruling
is Trump can't be on the Republican primary ballot, Well,
he's going to win the nomination, likely even without Colorado.
So why is this a big deal?
Speaker 3 (01:43):
Well, it's a big deal for all sorts of reasons
because it ultimately sets a tremendous precedent that establishes that
Colorado is essentially able to hold what I see as
a mini trial to determine whether the electorate of our
great country are able to vote a certain person into
(02:04):
office or whether that's going to be something that we
lead to state court judges to decide. And this is
not just for President Trump, this is for the future
of our country.
Speaker 2 (02:14):
Well, right, And why it's going to be a big
decision from the Supreme Court when they take this up,
which you believe they'll take it up corect.
Speaker 3 (02:24):
Oh, they have to take this up. I mean, this
is a major issue that affects everybody in the state
of Colorado. So in the state Supreme Court of Colorado
are forecasting the Supreme Court will take this up, and
they'll do so very quickly. There are many issues in
many different ways for the Supreme Court to slice indce
this decision, and so it has yet to be seen
(02:46):
how they are going to approach it. But I certainly
think they will address this very quickly.
Speaker 2 (02:52):
But the Supreme Court could rule in such a way
that it keeps other states from doing this and states
from trying to keep Trump off the ballot for the
general election.
Speaker 3 (02:59):
Correct, right. So the way that the Supreme Court could
approach this could nearly be that they could look at
what Colorado did and say that they followed the appropriate
legal standards in doing so, or what I think is
more likely, they could come back and simply say that
there was some sort of violation of due process, or
that the third clause of the Fourteenth Amendment doesn't say
(03:21):
what the State of Colorado said that it says. They
could also use this as the opportunity to make rulings
on big issues like whether President Trump had immunity for
his actions and conduct related to January sixth. That's been
something that has gotten a lot more attention with regard
to the Washington, d c. Federal trial, and Jack Smith
(03:42):
has recently asked that the Supreme Court take up that
issue straight away and skip over the DC Appellate Court
on that issue. That's a major issue that would affect
the ability for Jack Smith to be able to prosecute
him and really potentially quash all of the pending prosecution
except for those happening potentially in the state of Georgia.
(04:03):
But even that could go away if the Supreme Court
issues of ruling that's broad enough based solely even on
this Colorado case.
Speaker 2 (04:14):
I'm trying so hard to not let my wishes be
the father of my thoughts on this issue from a
legal standpoint, and I'm not a lawyer, but i just
feel like the only way out of this ultimately is
letting you know, roughly one hundred and sixty million people
vote knowing everything they know about Donald Trump on whether
(04:35):
or not they want him to be president on as
opposed to a handful of lawyers in Colorado or somewhere
making a decision of whether or not Trump is president.
As you've pointed out, Congress had a swing at it
with impeachment on this very issue, did not impeach and
remove him on this very issue. And Jack Smith am
I correct, Jack Smith has not charged him with insurrection.
Speaker 3 (05:00):
That's exactly correct. And I think that you make an
interesting point about not letting your own personal politics get
in the way of your opinions about what the Colorado
Supreme Court is doing here or really what any of
these various prosecutions do. In terms of your opinion. You
could be against President Trump but still believe that the
(05:20):
process that's being held against him is unfair, improper, because
when you really play it out, you know, when it's
the next the next election, when it's other parties flip
flopping the same precedent, Is this what we want for
our country in the future. And so I think that
what we have to look at is when we look
at January sixth, and we look at the outrage that
(05:41):
the left has over January sixth, and there's a lot
to be upset about. Absolutely on January Absolutely, do you
take what happened there and turn it into a legal
question that effectively changes the political framework of our country
for the for hundreds of years down the road. That's
where I have issues with things, because I think that
(06:01):
an American president has an immense amount of ability to
do all sorts of grave harm to our country. But
that's really a political question, like the idea that the
president has the ability to push the nuclear But you know,
how do we second guess those decisions that presidents make
in times of war? Do we leave that up to
(06:23):
state court judges to decide in next election cycles whether
they're offended by what somebody did in their past presidency
and then keep them off the ballot. So we have
to have very clear standards, and the Supreme Court's going
to get deep in on this, and I think set
president that will hopefully protect candidates in parties on both
(06:44):
sides in every state for years and years to come.
Speaker 2 (06:47):
Yeah, I'm concerned that if we head down this road,
for instance, the state of Texas could go through some
legal gymnastics and decide, you know, Joe Biden shouldn't be
on the ballot. Probably wouldn't have this time around, But
down the road, when we get used to this sort
of thing decide, you know, this Democratic president shouldn't be
on the ballot. They violated their oath of office by
(07:07):
not securing our border, so they shouldn't be on the ballot.
And then just you know, we'll have different states doing
it with different candidates.
Speaker 3 (07:16):
Well, one of the examples that I like to use
is the outrage that many on the right, and I think,
without regard to politics, about how Joe Biden handled the
withdrawal from Afghanistan. And you can say that his withdrawal
perhaps was negligent and directly legged that the twelve Marines
on the eve of them leaving, And you could say
(07:39):
from a legal perspective that that's negligent homicide, that he
acted without proper due care and without proper military strategy,
and it ended these marines lives when he did so.
So when he leaves office, do we want a special
prosecutor coming in and prosecuting him for negligent homicide saying
that he didn't followed the strategy of military advisors in
(08:03):
a proper fashion and that he had deviated from his
both of office when he did so. That's the sort
of example that I can put out there. And there's
dozens and dozens of other presidents who have committed, you know,
bone headed errors along the way. Do we go back
and prosecute them for their acts while they were in
office just because it led to the death of certain
(08:24):
military members, or because perhaps even secret ops that were
conducted that were special forces killed individuals in other countries.
You know, we have to be very careful before we
start prosecuting presidents and prohibiting them from allowing the electorate
to make decisions about whether they should serve in public office.
Speaker 2 (08:46):
So I understand a two hundred page opinion this Colorado case.
Is that correct?
Speaker 3 (08:54):
It's two hundred pages, and it is tortured in some regards.
There's also some really interesting commentary from the dissenting justices,
all of whom are democratically appointed individuals. And when I
say democratically, I mean appointed by Democrats, not through a
democratic process. There is some very strong critique, even from
(09:19):
Democrat appointed justices. There is also some really interesting, kind
of deep in the reads critique of how the trial
took place because the trial judge here, who made a
decision not beyond a reasonable doubt and not with a
jury of Donald Trump's peers, but use the January sixth
findings of the highly partisan Congressional Committee to influence the
(09:46):
decision that an interact took place that would typically be
considered here safe testimony. So you're using the congressional opinions
and political stunts in order to ultimately convict President Trump
in a trial court in the state of Colorado for
insurrection that doesn't really add up as a trial lawyer,
(10:07):
that would never usually take place in a court of law,
and is just one of many more nuanced issues about
how the Colorado courts have handled this in a way
that I just think is pretty obviously unconstitutional. The Colorado
support disagrees with me on that, of course, but we'll
have to see with the Supreme Court test.
Speaker 2 (10:28):
So let's get into the timing of what could happen here.
How do you expect, So we're voting in twenty five days,
they're caucusing rather in Ireland like twenty five days, and
so actual ballots will be cast and will work our
way down toward getting a nominee. But when is the
Supreme Court likely to take this up and how long
(10:50):
will it take to make a decision?
Speaker 3 (10:51):
Would you guess, Well, the Colorado Supreme Court has effectively
given the parties until January fourth to get appeals into
the United States Supreme Court, and after that, starting on
January fifth, the Colorado Supreme Court has effectively said, well,
if the US Supreme Court issues is stay, well, then
(11:14):
this issue will be stayed and Donald Trump will remain
on the ballot while the Supreme Court takes this up.
If the US Supreme Court does not issue a stay
by then, then the Secretary of State in Colorado will
start removing his name from the ballots. Apparently, the ballots
in Colorado are printed on January fifth, So I think
that we're going to hear something from the Supreme Court
(11:35):
by January fifth indicating a stay on this decision. Now,
when they hear this issue is interesting. They've got a
term that's about to begin. That term runs through the
end of June, and decisions come in throughout that time,
generally kind of up to the last minute in June.
Now there's all sorts of ways the US Supreme Court
(11:55):
could decide this. They could decide this summarily. This could
be a nine years decision that's done in writing. They
decide not to take it up for technical reasons, So
there could be kind of a summary decision. They could
also want to hear oral arguments and turn this into
a big show and make this one of the decisions
(12:16):
that really kind of takes all the way until the
end of June to hear about. I think one of
the things that will determine that is whether they consider
the Colorado Supreme Court decision for just some narrow due
process questions, or for an interpretation of Clause three of
Article fourteen of of the Fourteenth Amendment excuse me, of
(12:40):
the Constitution, or whether they take on some of the
bigger issues like I was talking about, like the immunity
issue or First Amendment issues. Those types of decisions, those
types of questions would affect, like I said earlier, all
of the various prosecutions against Donald Trump, not just these
Fourteenth Amendment questions. And that's something that I think they
(13:01):
would likely push all the way until the end of
June if they wanted to be you know, if they
wanted to take as global as an approach as possible.
Speaker 2 (13:09):
Would you expect because there are a handful of other
states that have looked at this now, like Minnesota recently,
They're Supreme Court decided. Now we don't agree, which was
kind of surprising to some. Then a handful of states
have tossed the case out. Do you think other states
are going to move this direction before the Supreme Court
will get around to ruling on it.
Speaker 3 (13:27):
I think that the other courts will make decisions as well. Now,
the Colorado decision isn't going to be binding on other
states decisions, but state supreme courts do look at what
other states do in non binding type of precedent perspectives.
So I do think that this will influence some other courts.
I mean, these are justices from the state of Colorado
(13:52):
who are well regarded in the legal community, at least
by many, and so whether other Supreme Court judges and
other states will look at this, I think it's very likely.
And I think they're going to look at these individuals
as educated and pre eminent legal scholars and likely take
up at least some of their arguments. Now, others, I'm
(14:13):
I'm fraid we're gonna have to take a break.
Speaker 2 (14:15):
And or Andrew Turkowski joining us. Hey, Andrew, I hope
we can have you on again. We really like the
cut of your gym, and we've been looking for a
log expert to have on on a regular basis on
these kind of cases, so really appreciate your time today.
Speaker 3 (14:28):
Always my pleasure. Thank you so much.
Speaker 2 (14:30):
You bet you.
Speaker 3 (14:32):
I'm strong and getting
This is a first of its kind ruling the Colorado
Supreme Court determining that former President Donald Trump is ineligible
to be on Colorado's Republican primary ballot next year because
of his efforts to overturn that twenty twenty election. The
court accepted the argument that Trump engaged in insurrection in
violation of the Fourteenth Amendment. Lawsuits like this have come
(00:21):
before courts in seven states, but this is the first
time that President Trump has been deemed ineligible for office.
But as you can imagine, this is not the final word,
the Trump campaign, adding that they will swiftly appeal this ruling.
Speaker 2 (00:36):
Yeah, it is historic, and one of the reasons it's
historic not only has it never been done before for
like a minor candidate, it's being done now for a
guy that's running away with the nomination for one of
the two major parties and is leading in most polls
if the presidential election were held today. So it's pretty historic,
i'd say. Andrew Scherkaski joins this. He's a former federal prosecutor,
(01:00):
military veteran with decades of experience in law, and you
might see him as a trusted legal expert. On CNN
Fox News many other places. He has contributed national editorials
for The USA Today, The Hill. He's been cited for
his expertise in The New York Times, The Washington Post,
Vice Newsweek, the Associated President, manymore. So, just all around
well liked and respected guy. Guess Andrew. Welcome to the
(01:22):
Armstrong and Getty Show.
Speaker 1 (01:23):
How you doing well?
Speaker 3 (01:25):
Thank you so much for having me in. What a
nice introduction.
Speaker 2 (01:28):
Yeah, no problem, And let's start with Because the ruling
is Trump can't be on the Republican primary ballot, Well,
he's going to win the nomination, likely even without Colorado.
So why is this a big deal?
Speaker 3 (01:43):
Well, it's a big deal for all sorts of reasons
because it ultimately sets a tremendous precedent that establishes that
Colorado is essentially able to hold what I see as
a mini trial to determine whether the electorate of our
great country are able to vote a certain person into
(02:04):
office or whether that's going to be something that we
lead to state court judges to decide. And this is
not just for President Trump, this is for the future
of our country.
Speaker 2 (02:14):
Well, right, And why it's going to be a big
decision from the Supreme Court when they take this up,
which you believe they'll take it up corect.
Speaker 3 (02:24):
Oh, they have to take this up. I mean, this
is a major issue that affects everybody in the state
of Colorado. So in the state Supreme Court of Colorado
are forecasting the Supreme Court will take this up, and
they'll do so very quickly. There are many issues in
many different ways for the Supreme Court to slice indce
this decision, and so it has yet to be seen
(02:46):
how they are going to approach it. But I certainly
think they will address this very quickly.
Speaker 2 (02:52):
But the Supreme Court could rule in such a way
that it keeps other states from doing this and states
from trying to keep Trump off the ballot for the
general election.
Speaker 3 (02:59):
Correct, right. So the way that the Supreme Court could
approach this could nearly be that they could look at
what Colorado did and say that they followed the appropriate
legal standards in doing so, or what I think is
more likely, they could come back and simply say that
there was some sort of violation of due process, or
that the third clause of the Fourteenth Amendment doesn't say
(03:21):
what the State of Colorado said that it says. They
could also use this as the opportunity to make rulings
on big issues like whether President Trump had immunity for
his actions and conduct related to January sixth. That's been
something that has gotten a lot more attention with regard
to the Washington, d c. Federal trial, and Jack Smith
(03:42):
has recently asked that the Supreme Court take up that
issue straight away and skip over the DC Appellate Court
on that issue. That's a major issue that would affect
the ability for Jack Smith to be able to prosecute
him and really potentially quash all of the pending prosecution
except for those happening potentially in the state of Georgia.
(04:03):
But even that could go away if the Supreme Court
issues of ruling that's broad enough based solely even on
this Colorado case.
Speaker 2 (04:14):
I'm trying so hard to not let my wishes be
the father of my thoughts on this issue from a
legal standpoint, and I'm not a lawyer, but i just
feel like the only way out of this ultimately is
letting you know, roughly one hundred and sixty million people
vote knowing everything they know about Donald Trump on whether
(04:35):
or not they want him to be president on as
opposed to a handful of lawyers in Colorado or somewhere
making a decision of whether or not Trump is president.
As you've pointed out, Congress had a swing at it
with impeachment on this very issue, did not impeach and
remove him on this very issue. And Jack Smith am
I correct, Jack Smith has not charged him with insurrection.
Speaker 3 (05:00):
That's exactly correct. And I think that you make an
interesting point about not letting your own personal politics get
in the way of your opinions about what the Colorado
Supreme Court is doing here or really what any of
these various prosecutions do. In terms of your opinion. You
could be against President Trump but still believe that the
(05:20):
process that's being held against him is unfair, improper, because
when you really play it out, you know, when it's
the next the next election, when it's other parties flip
flopping the same precedent, Is this what we want for
our country in the future. And so I think that
what we have to look at is when we look
at January sixth, and we look at the outrage that
(05:41):
the left has over January sixth, and there's a lot
to be upset about. Absolutely on January Absolutely, do you
take what happened there and turn it into a legal
question that effectively changes the political framework of our country
for the for hundreds of years down the road. That's
where I have issues with things, because I think that
(06:01):
an American president has an immense amount of ability to
do all sorts of grave harm to our country. But
that's really a political question, like the idea that the
president has the ability to push the nuclear But you know,
how do we second guess those decisions that presidents make
in times of war? Do we leave that up to
(06:23):
state court judges to decide in next election cycles whether
they're offended by what somebody did in their past presidency
and then keep them off the ballot. So we have
to have very clear standards, and the Supreme Court's going
to get deep in on this, and I think set
president that will hopefully protect candidates in parties on both
(06:44):
sides in every state for years and years to come.
Speaker 2 (06:47):
Yeah, I'm concerned that if we head down this road,
for instance, the state of Texas could go through some
legal gymnastics and decide, you know, Joe Biden shouldn't be
on the ballot. Probably wouldn't have this time around, But
down the road, when we get used to this sort
of thing decide, you know, this Democratic president shouldn't be
on the ballot. They violated their oath of office by
(07:07):
not securing our border, so they shouldn't be on the ballot.
And then just you know, we'll have different states doing
it with different candidates.
Speaker 3 (07:16):
Well, one of the examples that I like to use
is the outrage that many on the right, and I think,
without regard to politics, about how Joe Biden handled the
withdrawal from Afghanistan. And you can say that his withdrawal
perhaps was negligent and directly legged that the twelve Marines
on the eve of them leaving, And you could say
(07:39):
from a legal perspective that that's negligent homicide, that he
acted without proper due care and without proper military strategy,
and it ended these marines lives when he did so.
So when he leaves office, do we want a special
prosecutor coming in and prosecuting him for negligent homicide saying
that he didn't followed the strategy of military advisors in
(08:03):
a proper fashion and that he had deviated from his
both of office when he did so. That's the sort
of example that I can put out there. And there's
dozens and dozens of other presidents who have committed, you know,
bone headed errors along the way. Do we go back
and prosecute them for their acts while they were in
office just because it led to the death of certain
(08:24):
military members, or because perhaps even secret ops that were
conducted that were special forces killed individuals in other countries.
You know, we have to be very careful before we
start prosecuting presidents and prohibiting them from allowing the electorate
to make decisions about whether they should serve in public office.
Speaker 2 (08:46):
So I understand a two hundred page opinion this Colorado case.
Is that correct?
Speaker 3 (08:54):
It's two hundred pages, and it is tortured in some regards.
There's also some really interesting commentary from the dissenting justices,
all of whom are democratically appointed individuals. And when I
say democratically, I mean appointed by Democrats, not through a
democratic process. There is some very strong critique, even from
(09:19):
Democrat appointed justices. There is also some really interesting, kind
of deep in the reads critique of how the trial
took place because the trial judge here, who made a
decision not beyond a reasonable doubt and not with a
jury of Donald Trump's peers, but use the January sixth
findings of the highly partisan Congressional Committee to influence the
(09:46):
decision that an interact took place that would typically be
considered here safe testimony. So you're using the congressional opinions
and political stunts in order to ultimately convict President Trump
in a trial court in the state of Colorado for
insurrection that doesn't really add up as a trial lawyer,
(10:07):
that would never usually take place in a court of law,
and is just one of many more nuanced issues about
how the Colorado courts have handled this in a way
that I just think is pretty obviously unconstitutional. The Colorado
support disagrees with me on that, of course, but we'll
have to see with the Supreme Court test.
Speaker 2 (10:28):
So let's get into the timing of what could happen here.
How do you expect, So we're voting in twenty five days,
they're caucusing rather in Ireland like twenty five days, and
so actual ballots will be cast and will work our
way down toward getting a nominee. But when is the
Supreme Court likely to take this up and how long
(10:50):
will it take to make a decision?
Speaker 3 (10:51):
Would you guess, Well, the Colorado Supreme Court has effectively
given the parties until January fourth to get appeals into
the United States Supreme Court, and after that, starting on
January fifth, the Colorado Supreme Court has effectively said, well,
if the US Supreme Court issues is stay, well, then
(11:14):
this issue will be stayed and Donald Trump will remain
on the ballot while the Supreme Court takes this up.
If the US Supreme Court does not issue a stay
by then, then the Secretary of State in Colorado will
start removing his name from the ballots. Apparently, the ballots
in Colorado are printed on January fifth, So I think
that we're going to hear something from the Supreme Court
(11:35):
by January fifth indicating a stay on this decision. Now,
when they hear this issue is interesting. They've got a
term that's about to begin. That term runs through the
end of June, and decisions come in throughout that time,
generally kind of up to the last minute in June.
Now there's all sorts of ways the US Supreme Court
(11:55):
could decide this. They could decide this summarily. This could
be a nine years decision that's done in writing. They
decide not to take it up for technical reasons, So
there could be kind of a summary decision. They could
also want to hear oral arguments and turn this into
a big show and make this one of the decisions
(12:16):
that really kind of takes all the way until the
end of June to hear about. I think one of
the things that will determine that is whether they consider
the Colorado Supreme Court decision for just some narrow due
process questions, or for an interpretation of Clause three of
Article fourteen of of the Fourteenth Amendment excuse me, of
(12:40):
the Constitution, or whether they take on some of the
bigger issues like I was talking about, like the immunity
issue or First Amendment issues. Those types of decisions, those
types of questions would affect, like I said earlier, all
of the various prosecutions against Donald Trump, not just these
Fourteenth Amendment questions. And that's something that I think they
(13:01):
would likely push all the way until the end of
June if they wanted to be you know, if they
wanted to take as global as an approach as possible.
Speaker 2 (13:09):
Would you expect because there are a handful of other
states that have looked at this now, like Minnesota recently,
They're Supreme Court decided. Now we don't agree, which was
kind of surprising to some. Then a handful of states
have tossed the case out. Do you think other states
are going to move this direction before the Supreme Court
will get around to ruling on it.
Speaker 3 (13:27):
I think that the other courts will make decisions as well. Now,
the Colorado decision isn't going to be binding on other
states decisions, but state supreme courts do look at what
other states do in non binding type of precedent perspectives.
So I do think that this will influence some other courts.
I mean, these are justices from the state of Colorado
(13:52):
who are well regarded in the legal community, at least
by many, and so whether other Supreme Court judges and
other states will look at this, I think it's very likely.
And I think they're going to look at these individuals
as educated and pre eminent legal scholars and likely take
up at least some of their arguments. Now, others, I'm
(14:13):
I'm fraid we're gonna have to take a break.
Speaker 2 (14:15):
And or Andrew Turkowski joining us. Hey, Andrew, I hope
we can have you on again. We really like the
cut of your gym, and we've been looking for a
log expert to have on on a regular basis on
these kind of cases, so really appreciate your time today.
Speaker 3 (14:28):
Always my pleasure. Thank you so much.
Speaker 2 (14:30):
You bet you.
Speaker 3 (14:32):
I'm strong and getting
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Joe Getty
Jack Armstrong
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