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Speaker 1: This is a first of its kind ruling the Colorado

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Speaker 1: Supreme Court determining that former President Donald Trump is ineligible

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Speaker 1: to be on Colorado's Republican primary ballot next year because

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Speaker 1: of his efforts to overturn that twenty twenty election. The

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Speaker 1: court accepted the argument that Trump engaged in insurrection in

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Speaker 1: violation of the Fourteenth Amendment. Lawsuits like this have come

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Speaker 1: before courts in seven states, but this is the first

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Speaker 1: time that President Trump has been deemed ineligible for office.

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Speaker 1: But as you can imagine, this is not the final word,

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Speaker 1: the Trump campaign, adding that they will swiftly appeal this ruling.

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Speaker 2: Yeah, it is historic, and one of the reasons it's

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Speaker 2: historic not only has it never been done before for

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Speaker 2: like a minor candidate, it's being done now for a

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Speaker 2: guy that's running away with the nomination for one of

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Speaker 2: the two major parties and is leading in most polls

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Speaker 2: if the presidential election were held today. So it's pretty historic,

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Speaker 2: i'd say. Andrew Scherkaski joins this. He's a former federal prosecutor,

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Speaker 2: military veteran with decades of experience in law, and you

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Speaker 2: might see him as a trusted legal expert. On CNN

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Speaker 2: Fox News many other places. He has contributed national editorials

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Speaker 2: for The USA Today, The Hill. He's been cited for

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Speaker 2: his expertise in The New York Times, The Washington Post,

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Speaker 2: Vice Newsweek, the Associated President, manymore. So, just all around

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Speaker 2: well liked and respected guy. Guess Andrew. Welcome to the

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Speaker 2: Armstrong and Getty Show.

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Speaker 1: How you doing well?

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Speaker 3: Thank you so much for having me in. What a

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Speaker 3: nice introduction.

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Speaker 2: Yeah, no problem, And let's start with Because the ruling

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Speaker 2: is Trump can't be on the Republican primary ballot, Well,

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Speaker 2: he's going to win the nomination, likely even without Colorado.

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Speaker 2: So why is this a big deal?

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Speaker 3: Well, it's a big deal for all sorts of reasons

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Speaker 3: because it ultimately sets a tremendous precedent that establishes that

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Speaker 3: Colorado is essentially able to hold what I see as

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Speaker 3: a mini trial to determine whether the electorate of our

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Speaker 3: great country are able to vote a certain person into

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Speaker 3: office or whether that's going to be something that we

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Speaker 3: lead to state court judges to decide. And this is

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Speaker 3: not just for President Trump, this is for the future

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Speaker 3: of our country.

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Speaker 2: Well, right, And why it's going to be a big

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Speaker 2: decision from the Supreme Court when they take this up,

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Speaker 2: which you believe they'll take it up corect.

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Speaker 3: Oh, they have to take this up. I mean, this

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Speaker 3: is a major issue that affects everybody in the state

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Speaker 3: of Colorado. So in the state Supreme Court of Colorado

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Speaker 3: are forecasting the Supreme Court will take this up, and

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Speaker 3: they'll do so very quickly. There are many issues in

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Speaker 3: many different ways for the Supreme Court to slice indce

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Speaker 3: this decision, and so it has yet to be seen

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Speaker 3: how they are going to approach it. But I certainly

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Speaker 3: think they will address this very quickly.

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Speaker 2: But the Supreme Court could rule in such a way

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Speaker 2: that it keeps other states from doing this and states

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Speaker 2: from trying to keep Trump off the ballot for the

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Speaker 2: general election.

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Speaker 3: Correct, right. So the way that the Supreme Court could

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Speaker 3: approach this could nearly be that they could look at

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Speaker 3: what Colorado did and say that they followed the appropriate

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Speaker 3: legal standards in doing so, or what I think is

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Speaker 3: more likely, they could come back and simply say that

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Speaker 3: there was some sort of violation of due process, or

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Speaker 3: that the third clause of the Fourteenth Amendment doesn't say

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Speaker 3: what the State of Colorado said that it says. They

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Speaker 3: could also use this as the opportunity to make rulings

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Speaker 3: on big issues like whether President Trump had immunity for

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Speaker 3: his actions and conduct related to January sixth. That's been

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Speaker 3: something that has gotten a lot more attention with regard

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Speaker 3: to the Washington, d c. Federal trial, and Jack Smith

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Speaker 3: has recently asked that the Supreme Court take up that

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Speaker 3: issue straight away and skip over the DC Appellate Court

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Speaker 3: on that issue. That's a major issue that would affect

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Speaker 3: the ability for Jack Smith to be able to prosecute

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Speaker 3: him and really potentially quash all of the pending prosecution

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Speaker 3: except for those happening potentially in the state of Georgia.

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Speaker 3: But even that could go away if the Supreme Court

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Speaker 3: issues of ruling that's broad enough based solely even on

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Speaker 3: this Colorado case.

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Speaker 2: I'm trying so hard to not let my wishes be

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Speaker 2: the father of my thoughts on this issue from a

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Speaker 2: legal standpoint, and I'm not a lawyer, but i just

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Speaker 2: feel like the only way out of this ultimately is

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Speaker 2: letting you know, roughly one hundred and sixty million people

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Speaker 2: vote knowing everything they know about Donald Trump on whether

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Speaker 2: or not they want him to be president on as

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Speaker 2: opposed to a handful of lawyers in Colorado or somewhere

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Speaker 2: making a decision of whether or not Trump is president.

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Speaker 2: As you've pointed out, Congress had a swing at it

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Speaker 2: with impeachment on this very issue, did not impeach and

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Speaker 2: remove him on this very issue. And Jack Smith am

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Speaker 2: I correct, Jack Smith has not charged him with insurrection.

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Speaker 3: That's exactly correct. And I think that you make an

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Speaker 3: interesting point about not letting your own personal politics get

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Speaker 3: in the way of your opinions about what the Colorado

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Speaker 3: Supreme Court is doing here or really what any of

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Speaker 3: these various prosecutions do. In terms of your opinion. You

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Speaker 3: could be against President Trump but still believe that the

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Speaker 3: process that's being held against him is unfair, improper, because

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Speaker 3: when you really play it out, you know, when it's

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Speaker 3: the next the next election, when it's other parties flip

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Speaker 3: flopping the same precedent, Is this what we want for

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Speaker 3: our country in the future. And so I think that

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Speaker 3: what we have to look at is when we look

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Speaker 3: at January sixth, and we look at the outrage that

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Speaker 3: the left has over January sixth, and there's a lot

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Speaker 3: to be upset about. Absolutely on January Absolutely, do you

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Speaker 3: take what happened there and turn it into a legal

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Speaker 3: question that effectively changes the political framework of our country

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Speaker 3: for the for hundreds of years down the road. That's

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Speaker 3: where I have issues with things, because I think that

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Speaker 3: an American president has an immense amount of ability to

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Speaker 3: do all sorts of grave harm to our country. But

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Speaker 3: that's really a political question, like the idea that the

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Speaker 3: president has the ability to push the nuclear But you know,

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Speaker 3: how do we second guess those decisions that presidents make

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Speaker 3: in times of war? Do we leave that up to

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Speaker 3: state court judges to decide in next election cycles whether

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Speaker 3: they're offended by what somebody did in their past presidency

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Speaker 3: and then keep them off the ballot. So we have

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Speaker 3: to have very clear standards, and the Supreme Court's going

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Speaker 3: to get deep in on this, and I think set

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Speaker 3: president that will hopefully protect candidates in parties on both

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Speaker 3: sides in every state for years and years to come.

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Speaker 2: Yeah, I'm concerned that if we head down this road,

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Speaker 2: for instance, the state of Texas could go through some

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Speaker 2: legal gymnastics and decide, you know, Joe Biden shouldn't be

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Speaker 2: on the ballot. Probably wouldn't have this time around, But

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Speaker 2: down the road, when we get used to this sort

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Speaker 2: of thing decide, you know, this Democratic president shouldn't be

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Speaker 2: on the ballot. They violated their oath of office by

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Speaker 2: not securing our border, so they shouldn't be on the ballot.

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Speaker 2: And then just you know, we'll have different states doing

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Speaker 2: it with different candidates.

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Speaker 3: Well, one of the examples that I like to use

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Speaker 3: is the outrage that many on the right, and I think,

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Speaker 3: without regard to politics, about how Joe Biden handled the

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Speaker 3: withdrawal from Afghanistan. And you can say that his withdrawal

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Speaker 3: perhaps was negligent and directly legged that the twelve Marines

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Speaker 3: on the eve of them leaving, And you could say

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Speaker 3: from a legal perspective that that's negligent homicide, that he

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Speaker 3: acted without proper due care and without proper military strategy,

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Speaker 3: and it ended these marines lives when he did so.

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Speaker 3: So when he leaves office, do we want a special

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Speaker 3: prosecutor coming in and prosecuting him for negligent homicide saying

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Speaker 3: that he didn't followed the strategy of military advisors in

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Speaker 3: a proper fashion and that he had deviated from his

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Speaker 3: both of office when he did so. That's the sort

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Speaker 3: of example that I can put out there. And there's

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Speaker 3: dozens and dozens of other presidents who have committed, you know,

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Speaker 3: bone headed errors along the way. Do we go back

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Speaker 3: and prosecute them for their acts while they were in

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Speaker 3: office just because it led to the death of certain

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Speaker 3: military members, or because perhaps even secret ops that were

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Speaker 3: conducted that were special forces killed individuals in other countries.

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Speaker 3: You know, we have to be very careful before we

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Speaker 3: start prosecuting presidents and prohibiting them from allowing the electorate

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Speaker 3: to make decisions about whether they should serve in public office.

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Speaker 2: So I understand a two hundred page opinion this Colorado case.

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Speaker 2: Is that correct?

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Speaker 3: It's two hundred pages, and it is tortured in some regards.

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Speaker 3: There's also some really interesting commentary from the dissenting justices,

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Speaker 3: all of whom are democratically appointed individuals. And when I

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Speaker 3: say democratically, I mean appointed by Democrats, not through a

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Speaker 3: democratic process. There is some very strong critique, even from

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Speaker 3: Democrat appointed justices. There is also some really interesting, kind

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Speaker 3: of deep in the reads critique of how the trial

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Speaker 3: took place because the trial judge here, who made a

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Speaker 3: decision not beyond a reasonable doubt and not with a

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Speaker 3: jury of Donald Trump's peers, but use the January sixth

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Speaker 3: findings of the highly partisan Congressional Committee to influence the

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Speaker 3: decision that an interact took place that would typically be

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Speaker 3: considered here safe testimony. So you're using the congressional opinions

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Speaker 3: and political stunts in order to ultimately convict President Trump

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Speaker 3: in a trial court in the state of Colorado for

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Speaker 3: insurrection that doesn't really add up as a trial lawyer,

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Speaker 3: that would never usually take place in a court of law,

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Speaker 3: and is just one of many more nuanced issues about

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Speaker 3: how the Colorado courts have handled this in a way

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Speaker 3: that I just think is pretty obviously unconstitutional. The Colorado

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Speaker 3: support disagrees with me on that, of course, but we'll

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Speaker 3: have to see with the Supreme Court test.

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Speaker 2: So let's get into the timing of what could happen here.

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Speaker 2: How do you expect, So we're voting in twenty five days,

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Speaker 2: they're caucusing rather in Ireland like twenty five days, and

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Speaker 2: so actual ballots will be cast and will work our

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Speaker 2: way down toward getting a nominee. But when is the

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Speaker 2: Supreme Court likely to take this up and how long

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Speaker 2: will it take to make a decision?

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Speaker 3: Would you guess, Well, the Colorado Supreme Court has effectively

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Speaker 3: given the parties until January fourth to get appeals into

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Speaker 3: the United States Supreme Court, and after that, starting on

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Speaker 3: January fifth, the Colorado Supreme Court has effectively said, well,

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Speaker 3: if the US Supreme Court issues is stay, well, then

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Speaker 3: this issue will be stayed and Donald Trump will remain

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Speaker 3: on the ballot while the Supreme Court takes this up.

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Speaker 3: If the US Supreme Court does not issue a stay

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Speaker 3: by then, then the Secretary of State in Colorado will

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Speaker 3: start removing his name from the ballots. Apparently, the ballots

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Speaker 3: in Colorado are printed on January fifth, So I think

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Speaker 3: that we're going to hear something from the Supreme Court

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Speaker 3: by January fifth indicating a stay on this decision. Now,

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Speaker 3: when they hear this issue is interesting. They've got a

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Speaker 3: term that's about to begin. That term runs through the

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Speaker 3: end of June, and decisions come in throughout that time,

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Speaker 3: generally kind of up to the last minute in June.

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Speaker 3: Now there's all sorts of ways the US Supreme Court

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Speaker 3: could decide this. They could decide this summarily. This could

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Speaker 3: be a nine years decision that's done in writing. They

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Speaker 3: decide not to take it up for technical reasons, So

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Speaker 3: there could be kind of a summary decision. They could

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Speaker 3: also want to hear oral arguments and turn this into

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Speaker 3: a big show and make this one of the decisions

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Speaker 3: that really kind of takes all the way until the

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Speaker 3: end of June to hear about. I think one of

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Speaker 3: the things that will determine that is whether they consider

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Speaker 3: the Colorado Supreme Court decision for just some narrow due

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Speaker 3: process questions, or for an interpretation of Clause three of

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Speaker 3: Article fourteen of of the Fourteenth Amendment excuse me, of

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Speaker 3: the Constitution, or whether they take on some of the

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Speaker 3: bigger issues like I was talking about, like the immunity

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Speaker 3: issue or First Amendment issues. Those types of decisions, those

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Speaker 3: types of questions would affect, like I said earlier, all

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Speaker 3: of the various prosecutions against Donald Trump, not just these

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Speaker 3: Fourteenth Amendment questions. And that's something that I think they

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Speaker 3: would likely push all the way until the end of

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Speaker 3: June if they wanted to be you know, if they

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Speaker 3: wanted to take as global as an approach as possible.

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Speaker 2: Would you expect because there are a handful of other

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Speaker 2: states that have looked at this now, like Minnesota recently,

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Speaker 2: They're Supreme Court decided. Now we don't agree, which was

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Speaker 2: kind of surprising to some. Then a handful of states

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Speaker 2: have tossed the case out. Do you think other states

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Speaker 2: are going to move this direction before the Supreme Court

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Speaker 2: will get around to ruling on it.

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Speaker 3: I think that the other courts will make decisions as well. Now,

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Speaker 3: the Colorado decision isn't going to be binding on other

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Speaker 3: states decisions, but state supreme courts do look at what

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Speaker 3: other states do in non binding type of precedent perspectives.

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Speaker 3: So I do think that this will influence some other courts.

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Speaker 3: I mean, these are justices from the state of Colorado

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Speaker 3: who are well regarded in the legal community, at least

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Speaker 3: by many, and so whether other Supreme Court judges and

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Speaker 3: other states will look at this, I think it's very likely.

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Speaker 3: And I think they're going to look at these individuals

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Speaker 3: as educated and pre eminent legal scholars and likely take

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Speaker 3: up at least some of their arguments. Now, others, I'm

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Speaker 3: I'm fraid we're gonna have to take a break.

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Speaker 2: And or Andrew Turkowski joining us. Hey, Andrew, I hope

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Speaker 2: we can have you on again. We really like the

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Speaker 2: cut of your gym, and we've been looking for a

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Speaker 2: log expert to have on on a regular basis on

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Speaker 2: these kind of cases, so really appreciate your time today.

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Speaker 3: Always my pleasure. Thank you so much.

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Speaker 2: You bet you.

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Speaker 3: I'm strong and getting