No matter what side of the political spectrum you fall. And whether you think the former president should be on the 2024 ballot or not. Tomorrow's Supreme Court consideration of the Insurrection Clause is historic. We could not let it happen without taking a look.
In this interview, Bob interviews constitutional expert Ilya Somin, a professor at George Mason University. What follows is an engaging exploration into the 14th Amendment's insurrection clause and its potential repercussions for Donald Trump's political future. As the Supreme Court deliberates, we dissect the amendment's historical roots, established to curtail post-Civil War insurrectionists, and scrutinize its relevance in the wake of the January 6th Capitol siege. The conversation traverses the terrain of past rebellions and posits how the Capitol breach stands in comparison, offering an intricate understanding of the constitutional definitions at play. We take no side in this fight and the professor's views are his own.
Navigating the murky waters of what constitutes presidential support for an insurrection, we scrutinize Trump's actions on the fateful day, incljuding the implications of his response—or lack thereof—to the Capitol breach. The episode peels back the layers of constitutional ambiguity, addressing the complexities of determining engagement in insurrection, and how these gray areas resonate with our democracy's fundamental themes. Through Somin's expert (and, admittedly partisan) lens, we shine a light on the bearing this case could have, considering the unique dynamics of a former president and current political figurehead's eligibility for office.
Focusing on the electoral eligibility mechanisms, the dialogue turns to the influential role of Secretaries of State and the judiciary's part in protecting our electoral sanctity. Through historical references like the challenge to Ted Cruz's eligibility, we emphasize the importance of checks and balances within our legal system. The episode wraps with insights into the potential for the highest court to interpret both legal and factual findings, particularly in defining insurrection—and what it means to engage in it. For those drawn to the interplay of law and democracy, this episode is an invitation to witness a deep-dive into one of the most pressing legal debates of our time.
No matter what side of the political spectrum you fall. And whether you think the former president should be on the 2024 ballot or not. Tomorrow's Supreme Court consideration of the Insurrection Clause is historic. We could not let it happen without taking a look.
In this interview, Bob interviews constitutional expert Ilya Somin, a professor at George Mason University. What follows is an engaging exploration into the 14th Amendment's insurrection clause and its potential repercussions for Donald Trump's political future. As the Supreme Court deliberates, we dissect the amendment's historical roots, established to curtail post-Civil War insurrectionists, and scrutinize its relevance in the wake of the January 6th Capitol siege. The conversation traverses the terrain of past rebellions and posits how the Capitol breach stands in comparison, offering an intricate understanding of the constitutional definitions at play. We take no side in this fight and the professor's views are his own.
Navigating the murky waters of what constitutes presidential support for an insurrection, we scrutinize Trump's actions on the fateful day, incljuding the implications of his response—or lack thereof—to the Capitol breach. The episode peels back the layers of constitutional ambiguity, addressing the complexities of determining engagement in insurrection, and how these gray areas resonate with our democracy's fundamental themes. Through Somin's expert (and, admittedly partisan) lens, we shine a light on the bearing this case could have, considering the unique dynamics of a former president and current political figurehead's eligibility for office.
Focusing on the electoral eligibility mechanisms, the dialogue turns to the influential role of Secretaries of State and the judiciary's part in protecting our electoral sanctity. Through historical references like the challenge to Ted Cruz's eligibility, we emphasize the importance of checks and balances within our legal system. The episode wraps with insights into the potential for the highest court to interpret both legal and factual findings, particularly in defining insurrection—and what it means to engage in it. For those drawn to the interplay of law and democracy, this episode is an invitation to witness a deep-dive into one of the most pressing legal debates of our time.
Bob Sewell:
It's a phrase from popular movies. It's also a question that comes up in our daily life. The question is is that even legal? We talk about the things that drive you crazy, the things you won't believe and the things you need to know and understand. I'm attorney Bob Sewell and this is the podcast. Is that Even Legal? Let's get started. Today on the podcast is Ilya Solman. Ilya is a professor of law at George Mason University. He is a constitutional expert. He is the B Kenneth Simon Chair in Constitutional Studies at the Cato Institute. His research focuses on constitutional law, property law and democratic theory and federalism. Welcome to the show.
Professor Ilya Somin:
Thank you for having me.
Bob Sewell:
I wanted to have you on the show because I'm really interested in what we've been dealing with here in this country and right before the Supreme Court right now is the case of whether or not Donald Trump can be on the ballot in certain states that have chosen to exclude him from the ballot. And the most curious one of these cases to me is the Colorado case, and what they've done in Colorado is they've used the insurrection clause of the 14th Amendment and they've reasoned that Donald Trump, because of the activities that happened on January 6th, is no longer qualified to be on their ballot. And it was absolutely fascinating to me and I want to read to you the 14th Amendment, section 3, the insurrection clause, and then let's talk about it and about what's going on here and whether or not we think that this case in Colorado or anywhere else that it pops up has any feet. So here's what it says no person shall be a senator or representative in Congress or a elector of president and vice president, or hold any office, civil or military, under the United States or under any state, who have been previously taken a note as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive, a judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. The Congress may, by a vote of two thirds of each House, remove such disability.
Bob Sewell:
There's the insurrection clause. It came after the Civil War right and it was in their minds. When this went through and it was voted on and became a constitutional amendment, in their minds, were these insurrectionists? Now, here we are, these insurrectionists. You know the South right Now, here we are. It's 2024. What do we think? Do we think this case is important, one at the Colorado, at the at this Colorado case is important, that this is pretty important.
Professor Ilya Somin:
Yeah, so it definitely is important. I don't know which way it's going to come out, but I think for fairly obvious reasons. It is important because we're talking about the front runner for the nomination of one of the two major parties and we're also talking about the first president American history who, after he lost an election, instead of conceding his defeat, he instead tried to use a combination of force and fraud to stay in power like a tinhorn third world dictator, which is why this case arose. So I think it's important. It's fairly obvious, whatever you think about how it should come out.
Bob Sewell:
So what does it mean? Here we have the insurrection clause and you have been written on this subject. I saw your article in Reason Magazine on the Volcker conspiracy, which is a conservative, civil libertarian place on the internet and magazine on the internet. What does it mean to be an insurrection?
Professor Ilya Somin:
So there is some debate about what it qualifies or what can qualify as an insurrection.
Professor Ilya Somin:
There's a lot of evidence compiled by Mark Draber, a prominent legal scholar, which says that an insurrection at the time, in the 1860s, was actually defined pretty broadly to include any kind of forcible resistance to the enforcement of a federal law, so long as that resistance was quote for a public purpose, which in plain English means that you oppose the law because you think it's wrong or unjust or bad policy, rather that you're violating the law for a narrow self-interest like, say, a drug dealer violating the drug laws because he wants to make some money.
Professor Ilya Somin:
But I don't think you need a definition of insurrection that broad to conclude that what happened on January 6 was an insurrection, even under a relatively narrow and intuitive modern definition of an insurrection, which says that an insurrection is just an attempt to use force to seize power and take control of the powers of the government. January 6 qualifies because the people who attacked that day. They sought to seize power for Donald Trump and allow him to retain it even after he won the election and thereby take away the most powerful office in the land from a person who would actually won the election Joe Biden. So under that narrow definition of insurrection, which I think is the intuitive one for most people today, what happened on January 6 still qualifies under the broad originalist definition.
Bob Sewell:
It even more obviously qualifies yeah, and I think that gentleman who you just spoke of I can't remember his name he talked about more greater. He talked about the, if I remember right, the whiskey rebellion, which at the time was known as the whiskey insurrection, and he talked about how look, these are just a group of farmers and these farmers didn't want to pay the whiskey tax and they rose up to say we're not going to pay it. And you know, the Washington came in and they watched the whiskey rebellion and said no, you're paying this tax. And so and he reasons right that that if that was an extra interaction, then certainly this was an interaction, because they're trying to stop what you know, the, the happenings of Congress at that moment.
Professor Ilya Somin:
A couple of points about that. One is in section trajectory says insurrection or rebellion. So if somebody is a rebellion but not an insurrection, it still qualifies.
Professor Ilya Somin:
The whiskey rebellion and also Shay's rebellion in the 1780s, those were the two episodes prior to the civil war which were generally labeled as rebellions in American history.
Professor Ilya Somin:
Both of them featured levels of violence actually roughly comparable to what happened on January 6th. When you talk about the number of people killed or injured, the number of people involved in the uprising and so forth and in terms of trying to seize government power, I think what happened on January 6th was more clearly an attempt to seize government power than the whiskey rebellion, which wasn't saying you know, the leader of the whiskey rebellion is the actual president. He was just saying you know, we want to block the federal government from by force, from collecting the whiskey tax. And in the case of Shay's rebellion it was a group of mostly rural people in Massachusetts in the 1780s saying you know, we don't want to pay our debts. You know, we want debt for forgiveness and for cancellation. And they rebelled against the primarily in the first instance of the state government for that purpose. Here you have actually more clearly an attempt to seize power than in either of those two instances.
Bob Sewell:
When the Colorado court got received this case it was sort of interesting to me how it went about the case the lower court, the trial court. The first thing that I found interesting was there wasn't a trial right. If I remember right, there was actually per se, there wasn't fact finding.
Bob Sewell:
The Colorado court took a traditional notice of Congress as findings. And the other thing that was interesting was the Colorado Court said that the lower court, which was reversed by the Supreme Court of Colorado, the lower court said well, we don't, we think that he engaged in insurrection, but we don't think that. It that the section three the qualifies, because we don't think that the president is an officer in the United States. That one, surprisingly, that latter one, what do you think of that one?
Professor Ilya Somin:
So first, I note there was in fact the trial lasted five days. Both sides were able to present various kinds of evidence. The court did take judicial notice, among other evidence of the report of the Congressional January 6 Commission, but they did not simply rely on that evidence without considering, you know, other types of evidence as well. It is true that when the trial court completed its trial, it then issued a decision where the judge concluded she said that there was an insurrection, trump engaged in the insurrection, but then she also ruled that Trump was not covered by section three because she said the presidency of the United States is not an officer of the United States and therefore you know, on this reasoning, if you're a low level federal bureaucrat and you're engaged in insurrection, then you're disqualified under section three. But if you hold the highest and most powerful office in the land, then you know you engage in insurrection, then you're home free as far as section three is concerned. I think this argument is a fairly weak argument. It was rightly overturned by the Colorado Supreme Court, but it has attracted the enthusiasm of a people who would like the Supreme, the federal Supreme Court, to overturn the Colorado Supreme Court but recognize that maybe the federal Supreme Court would want a way to do that where they don't have to get into the details of what was going on January 6 and whether it was an interaction and then second, this is the kind of argument that sort of lawyers like but that make the legal profession look ridiculous and hateful to ordinary people because it leads to a conclusion which is absurd and ridiculous.
Professor Ilya Somin:
But you can try to support it by various counterintuitive textual inferences, like, for instance, you can look not into section three but to the original Constitution and you can find various passages which, depending on how you interpret them, suggest that the president is not an officer.
Professor Ilya Somin:
In every United States, for instance, there's a provision which says the president must commission all office United States, and people say aha, but he can't commission himself and so therefore you know that shows that the president is not an officer. Or you look at section three itself and you say, well, some other offices are enumerated, like members of Congress, members, the Electoral College, but the presidency is not enumerated. So that proves that it was supposed to be excluded, for reasons we can talk about. I think all these arguments that ultimately do not work and they also go against some basic principles of legal interpretation, but it's the kind of convoluted argument that is attractive to the legal mind, or at least to many of my fellow lawyers, and that's why you know it has some legs in the Supreme Court litigation, and it did ultimately persuade the trial judge. In this case, though, she got overruled by the by the Colorado Supreme Court.
Bob Sewell:
And I, I, when I heard that, that reasoning, that from the judge, I was absolutely floored. What do you mean? The president?
Bob Sewell:
you, know, I could go to his website will send the offices of the president United States. What do you mean? He's not holding an office within the United States. He's holding an office within the United States and I found it. It's a little bit absurd, a little bit, and it's. You're right. It's the type of thing that makes us look bad as lawyers. You know, if you, if it takes 25,000 pages to explain, while the office of the president United States isn't really an office of the president United States. Yeah, I think you've lost the argument. But one thing that's interesting about section three, that is, you don't have to necessarily engage in insurrection or rebellion. It says, or given aid or comfort to the enemies thereof. You could just give aid and comfort, whatever aid and comfort is, and not actually engage in the rebellion itself. Did my reading that right?
Professor Ilya Somin:
So that phrase certainly is in there. There's some controversy over who qualifies as an enemy of the United States, and some argue that enemies of the United States unlike insurrectionist enemies and it states are only foreign enemies, like a foreign power that we might be at war with. On the other hand, there is also argument that there can be domestic enemies in the United States, including insurrectionist. If you define aid and comfort relatively broadly, then you know what Trump did definitely qualifies, perhaps even if you define aid and comfort relatively narrowly, assuming that enemies United States includes domestic enemies and not just foreign enemies.
Professor Ilya Somin:
I think there is, you know, some danger in having a very broad definition of aid and comfort, because in that situation you could say, a member of Congress who criticizes the government's conduct of a war while the war is going on might be considered as a giving aid and comfort to the enemy and therefore he's disqualified from office, and I wouldn't want to go that far. Fortunately, in the case of Donald Trump, we don't need to go anywhere near that far and I think there's a strong argument that he engaged in the insurrection and not merely gave aid and comfort. But it is true that if domestic enemies count as the kind of enemies that we are talking about, then you know he, he surely did give aid and comfort to them.
Bob Sewell:
Let me, let me push back on you for a minute. Not, okay, let me play devil's advocate with you. Section three is coming immediately after the. The is coming immediately after the Civil War. Right, it's pretty obvious that they're worried about these people who are in Congress, who are in state legislatures and and they were part of this body, you know, that makes laws, and were here to support and engage in this. You know this Democratic Republic. And then they, they flipped and they said we're going to take up arms and that again. So that's pretty obvious that that's an insurrection, that's a rebellion and and we don't want these people back, like we fought a war because of the rhetoric, the politics, the, your efforts to stay empowered. We fought a war for that. We don't want you back, guys, somehow you're repentant. In this case, we're going to allow the, the Congress, to overturn that with two thirds majority vote. Okay, now fast forward.
Bob Sewell:
And we got here today's day, president Trump. He certainly is engaging in dangerous political rhetoric with him when he talks about well, I won the election. Joe Biden didn't lose the win, the election, he lost the election. He's engaging this. That's part of his first amendment, right? But then he goes to this rally on January 6th, and he doesn't say. What he doesn't say is go to the Capitol, storm the Capitol, smash the doors down, smash the windows in hang Mike Pence and assassinate Nancy Pelosi.
Bob Sewell:
He doesn't say these things, so I think, is it enough then? Is it enough?
Professor Ilya Somin:
Yeah. So I do think the best argument the other side in this case has is the idea that even if there was an insurrection, which are pretty clearly was maybe Trump didn't engage in it. That said, I think there is none. The West Australian case that he did for a couple of reasons. One is, as the Colorado Supreme Court found, we have to focus not just on what he said at that rally but on what he said and did before and afterwards. And, as the Colorado Supreme Court explained, there was a lot of things that he said before beginning weeks earlier, that encourage violence by barriers of his supporters, that he had good reason to know where the kinds of people who were likely to be violent groups, like the Proud Boys, for instance, that were later heavily involved in the attack on the Capitol. Second, when you look at the speech as all speech, you have to interpret it in context, and those statements about fight like hell in the wake were in the context of a mob that he himself had primed for violence before, and that makes it different than say if someone is sitting on a bar stool saying I got a fight like hell for my political principles or something like that.
Professor Ilya Somin:
And finally, I think perhaps the single most damning part is not what he did before the rally or doing it, but what he did afterwards, when he went back to the White House and they were attacking the Capitol. During that time, he was calling up members of the House and Senate, urging them to reject the electoral votes and keep them in power, and that is effectively using the attack on the Capitol as leverage to try to get Congress to do what he wanted. So he was essentially there working in cahoots with the attackers. Rather than trying to stop the attack, or even rather than just sit and round and do nothing, he was using the attack as leverage to achieve his purposes, which, of course, were also the purposes of the attackers themselves. And that, I think, is the most queer aspect of what he did in terms of engaging in insurrection.
Bob Sewell:
Yeah. Would it be enough if he to simply do nothing? Would that be enough? Giving aid and comfort Well, I'm not going to send in the National Guard, I'm not going to support the police for several hours Would that be enough? Would that be giving aid and comfort to the enemies there? Would that be engaging in insurrection? If I, just if Trump did nothing to quash it?
Professor Ilya Somin:
So for an ordinary person to do nothing, clearly that would not be engaging in insurrection or even giving aid and comfort. For the president, united States, things are more complicated, because he has a duty to suppress insurrections against the United States and it like so. If he chooses not to, you can argue that that gives a comfort in a way that would not be the case for an ordinary person, but the court may not even resolve that issue in this case, because Trump did do more than merely do nothing or sit around or whatnot. He had incited the insurrection beforehand and while it was going on he was trying to use it as leverage to achieve his purposes of illegally seizing power that did not belong to him for another term, and therefore there's no need in this case to even really consider the issue of whether, in some circumstances, doing nothing can be a form of giving aid and comfort, because here we have doing something.
Bob Sewell:
Let me ask you a question. Let's change the change directions a little bit. One of the things that is really odd to me as an attorney is section three doesn't give a procedure. It doesn't give a roadmap. Now there's a lot in the Constitution that doesn't give procedures. In fact, the Constitution doesn't give procedures anywhere. I've heard it referred to some of this that they are self executing right. So everyone knows that in voluntary servitude, slavery you don't need to have a procedure defined as someone is forcing another into involuntary servitude.
Professor Ilya Somin:
There's no procedure necessary.
Bob Sewell:
If you force someone into slavery, they're in slavery. That's illegal, that's wrong, that's unconstitutional. But we don't have it here. And it seems like here it's a little bit more wishy-washy, because we have to define whether or not someone engaged in an interaction or rebellion, whether or not someone's an enemy of the United States and whether or not the acts were giving aid and comfort. But we don't have that procedure. Are you bothered by this?
Professor Ilya Somin:
Not particularly. No, though obviously it is an issue to raise the litigation as you suggested. There are many parts of the Constitution where there's no specific procedure laid out for how to adjudicate or how to make factual determinations and it's not spelled out who gets to define the words. I think a key background assumption of all or most of these parts of the Constitution or specific procedures aren't laid out is that in the first instance it has to be dealt with by whatever state and federal officials normally deal with this area of policy, in this case electoral qualifications and then if one side or the other thinks that it was handled illegally, then they can go to court. They could potentially go to federal court or to state court and those courts will then use the ordinary procedures of civil litigation to make factual determinations and legal rulings.
Professor Ilya Somin:
And where there is a federal constitutional issue, obviously a determination by a state court could potentially wait or be challenged in federal court, in this case the US Supreme Court. So it is true it's possible officials can mishandle the definition of insurrection or they can mishandle factual determinations that are relevant and the like, and it is also true that in different states or in different lower federal courts you could get different conclusions, but that happens in constitutional litigation all the time, and that's one of the reasons why we have a Supreme Court where, eventually, issues like this can be appealed. So if you need a nationwide uniform determination as it ain't in this case you do then that can happen. But there's nothing unusual about provisions which are self enforcing, that is, you don't need additional congressional legislation, but at the same time, the Constitution doesn't spell out the precise procedure by which the legal issue will be resolved.
Bob Sewell:
Well, this is what bothers a lot of people who are looking at this from the outside, because in many states the Secretary of State decides who qualified for the ballot. The Secretary of State makes a determination. They look at the did they get the right number of signatures? Did they fill out the right paperwork at the right time? I never ran for office and I'm not an election attorney, but I know that those types of determinations are made from the Secretary of State. And why couldn't we? You know, in this case we could have, as a Secretary of State, that could say hey, I reviewed the Constitution, section 3 of Amendment 14, and it appears to me, after I reviewed the facts, that he engaged, donald Trump, engaged in insurrection, rebellion, and therefore I Democratic I know we're not a political show, but I, the Democratic Secretary of State, is now going to exclude Donald Trump from the ballot. It feels political, it feels wrong, it feels arbitrary. Help me, understand.
Professor Ilya Somin:
It is true in many states secretaries of state make these initial determinations. It's also true that both these officials are elected partisans, democrats or Republicans. If the Secretary of State got to make a final, unreviewable determination on that, then I think there would be basis for this complaint that there's this great political risk because you could have a Democratic Secretary of State just to disqualify all the Republicans, or vice versa. However, the way it actually works is that those determinations by secretaries of state can then be challenged in court. Judges at the state level, like at the federal level, are in various ways removed from the political process. Of course, if it is a determination under the federal constitution, then ultimately it can be dealt with in the federal courts as well.
Professor Ilya Somin:
You actually in the state of Maine you did have the Maine Secretary of State make a determination that Donald Trump is ineligible, but Trump immediately challenged that in Maine State Court. That decision or that case is for the moment stayed because they're waiting to see how the federal Supreme Court will resolve the Colorado case. But it is simply not true that partisan officials would get the final say on any of this. They in some states would get an initial say. They can make an initial determination, but a candidate who is disqualified would have the right to challenge it in court. Courts are a branch of government that, while certainly not immune to bias, they're not political officials or partisans, in the same way that secretaries of state often are.
Bob Sewell:
Yeah, while there are partisan judges, I think out there that the vast majority of judges I've ever encountered are just regular Joe Smoles. They go home to their families and they just are really interested in the law and how it works. Now, I think that's an important thing to know that, hey, this is the process, this is what we have. This is the secretary of state making determinations and then we engage in litigation. We shouldn't be bothered, necessarily. Is what you're saying that the secretary of state, who may be a partisan, has made the decision, provided that our system for challenging that decision is adequate?
Professor Ilya Somin:
Yes. I would add, obviously, also that the system varies by state. It's not always the case that a secretary of state makes an initial decision. In the Colorado case, the case was in the state courts from the get-go, whereas in the other hand, in Maine, it was ruling by the secretary of state. Different states have different procedures. I would add that this is how electoral qualifications have been determined throughout American history.
Professor Ilya Somin:
In 2016, donald Trump supporters themselves use this system.
Professor Ilya Somin:
They went to court in multiple states to challenge the eligibility of Ted Cruz, who after a time was Trump's main rival for the GOP nomination. They argued he was not a natural born citizen of the United States, as the president must be under the Constitution, because, even though his parents were US citizens when Cruz was born, cruz was born in Canada, and Trump supporters they said well, you have to be born within the territorial limits of the US. They went to court in a couple of different states making that argument. The court eventually ruled against them and said correctly, I think, that the Cruz was eligible. But no one doubted, at least of all the Trump supporters who brought the case, that state courts had the authority to make that determination. In principle, it could have been appealed all the way up to the US Supreme Court, but ultimately that didn't happen in this instance. But what's good for the Ted Cruz goose is also good for the Donald Trump gander that this process can be used to determine electoral eligibility the eligibility of candidates for the presidency.
Bob Sewell:
I had totally forgotten about that. My wife is a dual citizen. She was born in Canada as a naturalized Canadian citizen. I was given her a hard time about that. Hey, I told you you can't run for president. She's like that's okay by me. I want to go back to the matter. Then the Supreme Court is going to review the Colorado decision. Does the Supreme Court get to second guess Colorado is finding the fact that Donald Trump engaged in insurrection or rebellion?
Professor Ilya Somin:
I would say a couple of things about that. One is that finding is partly factual, but also it's partly legal, based on definitions of engaged in and definitions of insurrection. The issue of what counts as an insurrection or what counts as engaging in it and also what counts as a rebellion All of those are legal questions that the court certainly can and probably will review. The factual findings about what exactly Trump did on those days and the like, those can also potentially be reviewed, but only with a lot of deference. I believe I'd have to check on this.
Professor Ilya Somin:
This particular set of issues is not one of my forties, not one of my areas of expertise, but, as I understand it, a Pauwik courts can only review purely factual findings for clear error. However, as a practical matter, I think most of what Donald Trump did there the pure facts. There's not a lot of dispute over them. What is disputed is whether what he did fits the definition of engaging in insurrection, both in terms of what counts as engaging in it, and also some people have argued that January 6th was not an insurrection. It's interesting that Donald Trump's brief before the Supreme Court filed yesterday actually does not make the argument that January 6th was not an insurrection. They just make the argument that even if it was, trump didn't engage in it. But there are other people who have made the claim that it was not an insurrection.
Bob Sewell:
Fascinating. So the court's going to have to review the language of the section 3, it's going to have to review the definitions of insurrection, the definitions of rebellion, the definitions of giving aid and support, all these types of things, and then make sure that the findings of fact match those definitions. Is that what you're saying?
Professor Ilya Somin:
Yes, that's right. That's how appellate litigation, or often trial litigation as well, work, that the court makes determinations about disputed legal issues. But ultimately the reason why in a given case we care about the legal issue, the definition of words in a statute or in a constitution is because of its connection to a set of facts and, generally speaking, appellate courts do not have to give any deference to the trial court when it comes to purely legal issues the definition of insurrection, the definition of engaged in whether the presidency is an officer of the United States, and so on. But they do give deference on purely factual matters. Did a shoot be in the woodshed? What did Donald Trump say on January 6th? Those kinds of questions. There generally is a lot of deference, not complete deference, but a lot of deference to the findings of the trial court.
Bob Sewell:
All right. So you're going to go to Vegas, you're going to take your last paycheck and you're going to bet on what the Supreme Court's going to do. What are you going to lay your wage, your honor?
Professor Ilya Somin:
Yeah. So these predictions are worth about as much as you're not paying for them. But what I would say is this I think it's somewhat more likely that the court will overturn the Colorado Supreme Court than that they will affirm it. However, I think a lot of people are overconfident about the conclusion that many of them claim, as the federal Supreme Court will definitely overturn the Colorado Supreme Court. Some of that is based on political calculations of what they think the court's interests are that the federal Supreme Court will not want to disqualify a leading candidate in an election or anger Republicans and the like. That might be true. The federal Supreme Court might indeed be influenced by that. On the other hand, the extent that they're influenced by political considerations, they might also reason one that Donald Trump really is a great minister of public, as he's shown by his record. He's the kind of person that Section 3 was created to block.
Professor Ilya Somin:
And second, if you look at sort of what is the main accusation against this court made by some of its critics? I think the accusation is overblown and often unfair, but it is made. It's that they're the MAGA court and they just do what benefits the Republican Party or benefits conservative causes. And if they disqualify Trump, that accusation, that complaint about the court to a wide extent goes out the window. It would be very hard for people to keep on saying that with a straight face. So, to the extent that the court is influenced by these kinds of reputational considerations, there's ones that cut in favor of upholding the Colorado Supreme Court as well as perhaps ones that cut against. To the extent that the court is influenced just by legal arguments, and they should be ideally focused only on those legal arguments rather than on reputational considerations or political ones.
Professor Ilya Somin:
I think it is true the Trump side has the advantage that they have like five or six different ways by which they can win.
Professor Ilya Somin:
On the other hand, with one partial exception, all of them are really bad arguments.
Professor Ilya Somin:
That would create very problematic precedents.
Professor Ilya Somin:
And if the Supreme Court were to endorse them and there is a possible exception on the issue of engaged in which there I think there is a somewhat better argument, although ultimately still, I think, fallacious the court also could try to say that the problem was that Trump didn't get enough due process in the Colorado courts.
Professor Ilya Somin:
In that event you could issue a fairly narrow ruling, but then the issue would be likely to come back to the Supreme Court very quickly, because in another state or even in Colorado itself, he could be disqualified again, but with just somewhat greater process happening. So I think it could very well be and it's more likely to not that the federal Supreme Court will overturn the Colorado Supreme Court, but I think that is much less of a foregone conclusion than a lot of people think it is. I admit I will be proven to be wrong about this if you get a unanimous or nearly unanimous ruling in favor of Trump. But if you get a close five, four, six, three decisions, something like that, even if it's in favor of Trump, I think that will show that the issue was not as much of a foregone conclusion as some people claim.
Bob Sewell:
Yeah, I mean to be honest. If I was going to Vegas, I don't know what I'd laid my money on. It's a really hard thing, this case, because what comes out of this case, the the decision that is made, could ultimately change the direction of the United States in many respects and how we interpret Section 3 and what type of politician we have in the future. I think it could be a dangerous precedent, whatever comes up. Either way, the court needs to be very circumspect, in my opinion, and cast as an eye toward the future when they make decisions, whatever that decision may be.
Bob Sewell:
And the one more thing that I want to talk about that I think is interesting, that we'll call it a day. The Fort Colorado makes a decision, says Trump. 14th Amendment applies. Section 3 applies. The Supreme Court says Colorado, you're free to make that decision. That doesn't necessarily mean that Arizona has made that decision. That doesn't necessarily mean California or anywhere else has made that decision, am I right?
Professor Ilya Somin:
A lot depends on how the federal Supreme Court reasons it, but if the federal Supreme Court does uphold the Colorado Supreme Court, it would most likely be on the grounds that Section 3 applies to Trump.
Professor Ilya Somin:
Trump engaged in the insurrection and therefore he's disqualified, and therefore doubt, I think, would bar other states from saying no, actually Trump was not an officer in the United States, or no, he didn't engage in insurrection, or no, january 6 was not an insurrection at all. There could still be some variation between states, because not all states have a law like Colorado's which says that to be on the ballot for a particular office, you have to be constitutionally eligible for the office, and there's particularly variation about that when it comes to being on the ballot for a primary as opposed to being on the ballot for the general election. But I think the bottom line is that if Trump were, if the Supreme Court were to uphold the Colorado ruling, then Trump would be barred from the ballot in enough states that he would have virtually no chance of winning the electoral college and thereby winning the election, and though he could potentially end up on the ballot in some states where he's still the Republican Party's nominated.
Bob Sewell:
Professor Ilya Solin, thank you for coming on, thank you, thank you. Okay, so we're gonna send this out. When's our next? When does this go?
Professor Ilya Somin:
Six weeks.
Bob Sewell:
I think Two weeks. So about two weeks we'll air this. So I don't think the court's gonna have decided the order is on February 8.
Professor Ilya Somin:
So this will be yeah. So we'll not have been decided yet.
Bob Sewell:
So it looks like. All right, we won't be decided. Okay, perfect. So we'll send you the podcast when we get it all ready and send it off, and I really thank you for coming on.
Professor Ilya Somin:
It's super nice of you. Thank you so much for having me. I really appreciate it. Thank you.
Bob Sewell:
Take care. Thanks for listening to. Is that Even Legal? Remember this isn't legal advice. If you have a legal question for yourself, reach out to an attorney. Remember that we're fun, we're lovable and we are here to help you To my listeners in 62 countries across the world. If you have something you want to explore, email us at produceratevenlegalcom and don't be shy about leaving a review for this podcast on your favorite podcast forum. See you next time.
