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.
See omnystudio.com/listener for privacy information.
Episode Transcript
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
Hosts And Creators
Joe Getty
Jack Armstrong
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
The Burden
The Burden is a documentary series that takes listeners into the hidden places where justice is done (and undone). It dives deep into the lives of heroes and villains. And it focuses a spotlight on those who triumph even when the odds are against them. Season 5 - The Burden: Death & Deceit in Alliance On April Fools Day 1999, 26-year-old Yvonne Layne was found murdered in her Alliance, Ohio home. David Thorne, her ex-boyfriend and father of one of her children, was instantly a suspect. Another young man admitted to the murder, and David breathed a sigh of relief, until the confessed murderer fingered David; “He paid me to do it.” David was sentenced to life without parole. Two decades later, Pulitzer winner and podcast host, Maggie Freleng (Bone Valley Season 3: Graves County, Wrongful Conviction, Suave) launched a “live” investigation into David's conviction alongside Jason Baldwin (himself wrongfully convicted as a member of the West Memphis Three). Maggie had come to believe that the entire investigation of David was botched by the tiny local police department, or worse, covered up the real killer. Was Maggie correct? Was David’s claim of innocence credible? In Death and Deceit in Alliance, Maggie recounts the case that launched her career, and ultimately, “broke” her.” The results will shock the listener and reduce Maggie to tears and self-doubt. This is not your typical wrongful conviction story. In fact, it turns the genre on its head. It asks the question: What if our champions are foolish? Season 4 - The Burden: Get the Money and Run “Trying to murder my father, this was the thing that put me on the path.” That’s Joe Loya and that path was bank robbery. Bank, bank, bank, bank, bank. In season 4 of The Burden: Get the Money and Run, we hear from Joe who was once the most prolific bank robber in Southern California, and beyond. He used disguises, body doubles, proxies. He leaped over counters, grabbed the money and ran. Even as the FBI was closing in. It was a showdown between a daring bank robber, and a patient FBI agent. Joe was no ordinary bank robber. He was bright, articulate, charismatic, and driven by a dark rage that he summoned up at will. In seven episodes, Joe tells all: the what, the how… and the why. Including why he tried to murder his father. Season 3 - The Burden: Avenger Miriam Lewin is one of Argentina’s leading journalists today. At 19 years old, she was kidnapped off the streets of Buenos Aires for her political activism and thrown into a concentration camp. Thousands of her fellow inmates were executed, tossed alive from a cargo plane into the ocean. Miriam, along with a handful of others, will survive the camp. Then as a journalist, she will wage a decades long campaign to bring her tormentors to justice. Avenger is about one woman’s triumphant battle against unbelievable odds to survive torture, claim justice for the crimes done against her and others like her, and change the future of her country. Season 2 - The Burden: Empire on Blood Empire on Blood is set in the Bronx, NY, in the early 90s, when two young drug dealers ruled an intersection known as “The Corner on Blood.” The boss, Calvin Buari, lived large. He and a protege swore they would build an empire on blood. Then the relationship frayed and the protege accused Calvin of a double homicide which he claimed he didn’t do. But did he? Award-winning journalist Steve Fishman spent seven years to answer that question. This is the story of one man’s last chance to overturn his life sentence. He may prevail, but someone’s gotta pay. The Burden: Empire on Blood is the director’s cut of the true crime classic which reached #1 on the charts when it was first released half a dozen years ago. Season 1 - The Burden In the 1990s, Detective Louis N. Scarcella was legendary. In a city overrun by violent crime, he cracked the toughest cases and put away the worst criminals. “The Hulk” was his nickname. Then the story changed. Scarcella ran into a group of convicted murderers who all say they are innocent. They turned themselves into jailhouse-lawyers and in prison founded a lway firm. When they realized Scarcella helped put many of them away, they set their sights on taking him down. And with the help of a NY Times reporter they have a chance. For years, Scarcella insisted he did nothing wrong. But that’s all he’d say. Until we tracked Scarcella to a sauna in a Russian bathhouse, where he started to talk..and talk and talk. “The guilty have gone free,” he whispered. And then agreed to take us into the belly of the beast. Welcome to The Burden.