Speaker 1: The Colorado Supreme Court decision was a judicial masterpiece of
Speaker 1: in constitutional interpretation, that the opinion and the decision are
Speaker 1: unassailable and irrefutable.
Speaker 2: Wow.
Speaker 3: So that's a retired judge on Jake Tapper's show on
Speaker 3: CNN yesterday calling the Colorado decision a masterpiece of constitutional.
Speaker 2: Law, irrefutable, unassailable.
Speaker 4: Wow.
Speaker 3: In other words, anybody with eyes could see that they
Speaker 3: made the right decision. What are the problems I have
Speaker 3: with that? And I'm not I have no legal background whatsoever.
Speaker 3: But Georgia, North Carolina, and Minnesota, for instance, that's just
Speaker 3: three states who have looked at this and said, nah,
Speaker 3: so are all those people dopes?
Speaker 2: They're just all idiots.
Speaker 3: There in Minnesota, all their judges just they can't see
Speaker 3: what's obviously true. How can you ever say that about
Speaker 3: anything that's a controversial decision.
Speaker 2: It was a four to three decision, even for the
Speaker 2: Colorado Supreme Court.
Speaker 3: So you're saying the three that voted against our morons
Speaker 3: shouldn't be within a mile of the law because it's unassailable,
Speaker 3: it's obvious what is true.
Speaker 2: Thank God for the four that can see with their
Speaker 2: own eyes. I just I don't get it.
Speaker 3: I'm fine with this is murky, but I lean toward this,
Speaker 3: but don't pretend that it's obviously one thing. All right, Well,
Speaker 3: I'm glad we're talking to somebody else who can break
Speaker 3: a perspective. Randy Zellen, former prosecutor and constitutional law attorney
Speaker 3: at junct professor at Cornell Law School, frequently seeing on
Speaker 3: Fox News and Fox Business Channel, joins us today, Randy,
Speaker 3: how are you today?
Speaker 4: I am well, thank you for having me on.
Speaker 3: So unassailable and obviously the right decision.
Speaker 4: Well, it kind of reminds me of a meeting I
Speaker 4: was in the other day where a lawyer looked at
Speaker 4: me and started out her argument with it with all
Speaker 4: due respect, and I immediately said, don't ever say that
Speaker 4: to me, because that is code speak for you are
Speaker 4: a moron when anyone, and I don't care whether it's
Speaker 4: a retired judge, whether you are on CNN or you
Speaker 4: are on Newsmax or you are on with Armstrong, when
Speaker 4: you start your argument with it's unassailable, it's irrefutable, it
Speaker 4: is a masterpiece. It is the Mona Lisa of legal opinions.
Speaker 4: That is code speak for this is completely political, It
Speaker 4: is completely partisan, and it is anybody but Donald Trump
Speaker 4: who should be in office.
Speaker 3: That's good. I'm glad you said that. I will keep
Speaker 3: my eye out for that. I have always had a
Speaker 3: problem with that phrase, with all due respect, because it's
Speaker 3: usually followed by something that is incredibly disrespectful.
Speaker 4: As soon as you say it to me, I stop you.
Speaker 4: And I've learned that the heart way because as a
Speaker 4: young lawyer, I once said that to a judge and
Speaker 4: the judge literally went to throw the gavel at me.
Speaker 2: Let Alone the.
Speaker 4: Book, you don't say that to someone unless you are
Speaker 4: suggesting to them that they.
Speaker 3: Are more on Well, so I've been harping on this
Speaker 3: today because I think it's a really big deal. The
Speaker 3: Washington Post editorial board said, no, we can't let a
Speaker 3: Colorado court, you know, a handful of judges in Colorado
Speaker 3: decide who gets to be president or not.
Speaker 2: That's not the way our systems should work.
Speaker 3: They're more arguing it from a let's let the voters
Speaker 3: decide than the legal merits.
Speaker 2: Well, from the legal merits.
Speaker 3: What do you think the Supreme Court is going to
Speaker 3: do with this, assuming they take it up.
Speaker 4: Well, the fundamental question, as I see it, is really
Speaker 4: twofold because when you look at section three of Article fourteen,
Speaker 4: and that is the words, those are the words that
Speaker 4: we're all hanging on to. It's clear that when that
Speaker 4: amendment was drawn back in what eighteen sixty eight or so,
Speaker 4: not a lot of thought was given to the possibility
Speaker 4: that it could be a presidential candidate running for office.
Speaker 4: Because the amendment says nothing about whether or not you
Speaker 4: have to be convicted from a criminal standpoint, found libel
Speaker 4: from a civil standpoint, or found to have actually done
Speaker 4: it by some court, by some tribunal, by somebody. All
Speaker 4: it says is if you engage in insurrection, Well, the
Speaker 4: problem is who determines whether or not you've engaged in it.
Speaker 4: The easy answer would be, well, you've been convicted of it.
Speaker 4: The easy answer would be you were called in for
Speaker 4: a congressional hearing and you were found to have engaged
Speaker 4: in an active insurrection. We put it to the vote
Speaker 4: of all of the citizens of the United States by referendum,
Speaker 4: and the citizens of the United States decided by a
Speaker 4: majority or by some other percentage that you engaged in
Speaker 4: an act of insurrection. So the fundamental question that the
Speaker 4: Supreme Court has to grapple with is who decides whether
Speaker 4: or not you've engaged in it. What does it mean
Speaker 4: to engage in an active insurrection?
Speaker 2: Right?
Speaker 3: So, I've taken in a lot of legal podcasts in
Speaker 3: the last twenty four hours on this and heard a
Speaker 3: lot of different opinions, and I hope I don't get
Speaker 3: two in the weeds on this, but I heard the
Speaker 3: argument made that this is one of those things that's
Speaker 3: self activating.
Speaker 2: I guess that's the term.
Speaker 3: In other words, you know, are there things in the constitution,
Speaker 3: like if you want to be president you have to
Speaker 3: be a natural born citizen.
Speaker 2: That's self activating.
Speaker 3: A court doesn't need to find it, there doesn't need
Speaker 3: to be a conviction or anything like that. It's just
Speaker 3: this is what it is. And you're not, you know,
Speaker 3: you don't meet the standards. And they're saying that this
Speaker 3: is that sort of thing that you incited an insurrection.
Speaker 3: But it doesn't seem like it can because, like you said,
Speaker 3: there's a gray area on what an insurrection is about.
Speaker 4: Now, when you talk about those things that you call
Speaker 4: self activating, that means they are objectives, they are set
Speaker 4: in stone, that is something that's irrefutable. For example, when
Speaker 4: you look at the qualifications to be president. Let's look
Speaker 4: at it backwards and say, Okay, what are those things
Speaker 4: that disqualify you from being president? Well, one of them
Speaker 4: is if you're not born in the country.
Speaker 2: So that's easy.
Speaker 4: You're either born here or you're not. You have to
Speaker 4: be thirty five years old. Well, you either are thirty
Speaker 4: five or you're not. We don't need to have a
Speaker 4: legal debate over that. But you cannot compare the question
Speaker 4: of whether or not you engaged in an active insurrection
Speaker 4: to be the same as are you at least thirty
Speaker 4: five years old? Were you born in the United States?
Speaker 4: I mean that that to me is silly and it's
Speaker 4: intellectually dishonest.
Speaker 2: That's interesting.
Speaker 3: I wish I remember the name of the lawyer that
Speaker 3: I heard making that argument on a podcast, because he's
Speaker 3: a highly placed, well respected guy. But I felt the
Speaker 3: same way about it as you did, and I have
Speaker 3: no legal background whatsoever. So ultimately, before I get you
Speaker 3: off the phone, what do you think the Supreme Court
Speaker 3: is going to do? Do you think it'll be a
Speaker 3: nine to zero close call, it will be overturned? What
Speaker 3: do you think the result is going to be.
Speaker 4: I think they're going to punt on this. I haven't
Speaker 4: quite decided how they're going to punt on it, but
Speaker 4: I think they will punt, and it will end up
Speaker 4: being something that a Supreme court, a lower Supreme court
Speaker 4: should not be permitted to determine. I do not believe
Speaker 4: that the Supreme Court of the United States is going
Speaker 4: to hold today or anytime soon, that Donald Trump can
Speaker 4: be held off of a state ballot as a result
Speaker 4: of having engaged in an active insurrection, Because if the
Speaker 4: Supreme Court were to do that, that now becomes president
Speaker 4: president for all of these other Blue states that want
Speaker 4: and would love nothing more than to keep Trump off
Speaker 4: of the ballot. So I think from a presidential standpoint,
Speaker 4: from an optical standpoint, from the standpoint of not having
Speaker 4: this country tear it apart, tear itself apart further, and
Speaker 4: maybe start pushing us even closer to a civil war,
Speaker 4: there is no way, in my humble opinion, that the
Speaker 4: Supreme Court will say, you know something, if you want
Speaker 4: to keep Trump off the ballot because you believe he
Speaker 4: engaged in an act of insurrection, knock yourself out.
Speaker 2: Wow, that is really interesting. Thanks for your time today.
Speaker 3: Randy Zellen, former prosecutor and constitutional law.
Speaker 2: Attorney Armstrong and Getty