The Colorado Decision: Randy Zelin Talks To A&G

What is really going on with the Colorado decision? One judge called it a judicial masterpiece.

Randy Zelin, former prosecutor & constitutional law attorney, Adjunct Professor at Cornell Law School, frequently seen on Fox News, Fox Business Channel, talks to Jack Armstrong.

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Episode Transcript

Speaker 1 (00:00):
The Colorado Supreme Court decision was a judicial masterpiece of
in constitutional interpretation, that the opinion and the decision are
unassailable and irrefutable.

Speaker 2 (00:18):
Wow.

Speaker 3 (00:19):
So that's a retired judge on Jake Tapper's show on
CNN yesterday calling the Colorado decision a masterpiece of constitutional.

Speaker 2 (00:29):
Law, irrefutable, unassailable.

Speaker 4 (00:33):
Wow.

Speaker 3 (00:35):
In other words, anybody with eyes could see that they
made the right decision. What are the problems I have
with that? And I'm not I have no legal background whatsoever.
But Georgia, North Carolina, and Minnesota, for instance, that's just
three states who have looked at this and said, nah,
so are all those people dopes?

Speaker 2 (00:53):
They're just all idiots.

Speaker 3 (00:54):
There in Minnesota, all their judges just they can't see
what's obviously true. How can you ever say that about
anything that's a controversial decision.

Speaker 2 (01:02):
It was a four to three decision, even for the
Colorado Supreme Court.

Speaker 3 (01:05):
So you're saying the three that voted against our morons
shouldn't be within a mile of the law because it's unassailable,
it's obvious what is true.

Speaker 2 (01:13):
Thank God for the four that can see with their
own eyes. I just I don't get it.

Speaker 3 (01:18):
I'm fine with this is murky, but I lean toward this,
but don't pretend that it's obviously one thing. All right, Well,
I'm glad we're talking to somebody else who can break
a perspective. Randy Zellen, former prosecutor and constitutional law attorney
at junct professor at Cornell Law School, frequently seeing on
Fox News and Fox Business Channel, joins us today, Randy,

(01:40):
how are you today?

Speaker 4 (01:42):
I am well, thank you for having me on.

Speaker 3 (01:45):
So unassailable and obviously the right decision.

Speaker 4 (01:51):
Well, it kind of reminds me of a meeting I
was in the other day where a lawyer looked at
me and started out her argument with it with all
due respect, and I immediately said, don't ever say that
to me, because that is code speak for you are
a moron when anyone, and I don't care whether it's

(02:14):
a retired judge, whether you are on CNN or you
are on Newsmax or you are on with Armstrong, when
you start your argument with it's unassailable, it's irrefutable, it
is a masterpiece. It is the Mona Lisa of legal opinions.
That is code speak for this is completely political, It

(02:36):
is completely partisan, and it is anybody but Donald Trump
who should be in office.

Speaker 3 (02:43):
That's good. I'm glad you said that. I will keep
my eye out for that. I have always had a
problem with that phrase, with all due respect, because it's
usually followed by something that is incredibly disrespectful.

Speaker 4 (02:56):
As soon as you say it to me, I stop you.
And I've learned that the heart way because as a
young lawyer, I once said that to a judge and
the judge literally went to throw the gavel at me.

Speaker 2 (03:08):
Let Alone the.

Speaker 4 (03:09):
Book, you don't say that to someone unless you are
suggesting to them that they.

Speaker 3 (03:15):
Are more on Well, so I've been harping on this
today because I think it's a really big deal. The
Washington Post editorial board said, no, we can't let a
Colorado court, you know, a handful of judges in Colorado
decide who gets to be president or not.

Speaker 2 (03:31):
That's not the way our systems should work.

Speaker 3 (03:32):
They're more arguing it from a let's let the voters
decide than the legal merits.

Speaker 2 (03:37):
Well, from the legal merits.

Speaker 3 (03:39):
What do you think the Supreme Court is going to
do with this, assuming they take it up.

Speaker 4 (03:43):
Well, the fundamental question, as I see it, is really
twofold because when you look at section three of Article fourteen,
and that is the words, those are the words that
we're all hanging on to. It's clear that when that

(04:04):
amendment was drawn back in what eighteen sixty eight or so,
not a lot of thought was given to the possibility
that it could be a presidential candidate running for office.
Because the amendment says nothing about whether or not you

(04:26):
have to be convicted from a criminal standpoint, found libel
from a civil standpoint, or found to have actually done
it by some court, by some tribunal, by somebody. All
it says is if you engage in insurrection, Well, the

(04:47):
problem is who determines whether or not you've engaged in it.
The easy answer would be, well, you've been convicted of it.
The easy answer would be you were called in for
a congressional hearing and you were found to have engaged
in an active insurrection. We put it to the vote
of all of the citizens of the United States by referendum,

(05:11):
and the citizens of the United States decided by a
majority or by some other percentage that you engaged in
an act of insurrection. So the fundamental question that the
Supreme Court has to grapple with is who decides whether
or not you've engaged in it. What does it mean
to engage in an active insurrection?

Speaker 2 (05:34):
Right?

Speaker 3 (05:34):
So, I've taken in a lot of legal podcasts in
the last twenty four hours on this and heard a
lot of different opinions, and I hope I don't get
two in the weeds on this, but I heard the
argument made that this is one of those things that's
self activating.

Speaker 2 (05:48):
I guess that's the term.

Speaker 3 (05:49):
In other words, you know, are there things in the constitution,
like if you want to be president you have to
be a natural born citizen.

Speaker 2 (05:55):
That's self activating.

Speaker 3 (05:56):
A court doesn't need to find it, there doesn't need
to be a conviction or anything like that. It's just
this is what it is. And you're not, you know,
you don't meet the standards. And they're saying that this
is that sort of thing that you incited an insurrection.
But it doesn't seem like it can because, like you said,
there's a gray area on what an insurrection is about.

Speaker 4 (06:15):
Now, when you talk about those things that you call
self activating, that means they are objectives, they are set
in stone, that is something that's irrefutable. For example, when
you look at the qualifications to be president. Let's look
at it backwards and say, Okay, what are those things
that disqualify you from being president? Well, one of them

(06:36):
is if you're not born in the country.

Speaker 2 (06:38):
So that's easy.

Speaker 4 (06:40):
You're either born here or you're not. You have to
be thirty five years old. Well, you either are thirty
five or you're not. We don't need to have a
legal debate over that. But you cannot compare the question
of whether or not you engaged in an active insurrection

(07:04):
to be the same as are you at least thirty
five years old? Were you born in the United States?
I mean that that to me is silly and it's
intellectually dishonest.

Speaker 2 (07:17):
That's interesting.

Speaker 3 (07:18):
I wish I remember the name of the lawyer that
I heard making that argument on a podcast, because he's
a highly placed, well respected guy. But I felt the
same way about it as you did, and I have
no legal background whatsoever. So ultimately, before I get you
off the phone, what do you think the Supreme Court
is going to do? Do you think it'll be a
nine to zero close call, it will be overturned? What

(07:40):
do you think the result is going to be.

Speaker 4 (07:43):
I think they're going to punt on this. I haven't
quite decided how they're going to punt on it, but
I think they will punt, and it will end up
being something that a Supreme court, a lower Supreme court
should not be permitted to determine. I do not believe

(08:08):
that the Supreme Court of the United States is going
to hold today or anytime soon, that Donald Trump can
be held off of a state ballot as a result
of having engaged in an active insurrection, Because if the
Supreme Court were to do that, that now becomes president
president for all of these other Blue states that want

(08:33):
and would love nothing more than to keep Trump off
of the ballot. So I think from a presidential standpoint,
from an optical standpoint, from the standpoint of not having
this country tear it apart, tear itself apart further, and
maybe start pushing us even closer to a civil war,
there is no way, in my humble opinion, that the

(08:56):
Supreme Court will say, you know something, if you want
to keep Trump off the ballot because you believe he
engaged in an act of insurrection, knock yourself out.

Speaker 2 (09:07):
Wow, that is really interesting. Thanks for your time today.

Speaker 3 (09:10):
Randy Zellen, former prosecutor and constitutional law.

Speaker 2 (09:12):
Attorney Armstrong and Getty