Legal Analysis of Colorado's Ruling to Bar Trump From the Ballot

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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning everyone. Later in the show, we'll have the three winners of our best photo sitting on your phone in 2023 contest. Three listeners, who submitted photos that they took this year. Two of them in the, what I'll call the "holy moly look at that" category of things they stumbled on and quickly took pictures of. Plus our judges from the nonprofit photography group, Photoville. We'll also continue to present a variety of viewpoints on the Israel-Hamas war and the larger Israeli-Palestinian situation.

Today, it's Jodi Rudoren, editor-in-chief of the 126-year-old Jewish news organization, The Forward. She was also the Jerusalem Bureau chief for The New York Times for four years. Jodi Rudoren coming up today, but we start here. As you've been hearing in the news, no doubt the Colorado Supreme Court has barred Donald Trump from appearing on the ballot there for president because they ruled he violated the insurrection clause of the 14th Amendment. Now, I'm going to read the whole clause to start this off because I've been hearing it referred to a lot or tiny little excerpts from it because that's all they can do in a newscast.

We have the luxury of time. Here is the full text. "No person shall be a senator or representative in congress or elector of president and vice president or hold any office," remember that part, "any office, civil or military under the United States or under any state who, having previously taken an oath 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 or 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.

But Congress may by a vote of two-thirds of each house remove such disability." There it is, the insurrection clause of the 14th Amendment, and boy is that a big run-on sentence in the middle of it, the heart of it, the part that matters, but a lot to discuss in the language there that the Colorado Supreme Court based its 4:3 decision on, was a split decision, 4:3, and what the United States Supreme Court is almost certainly now going to consider, so let's consider it here.

Our guest with us is Elie Mystal, justice correspondent and columnist for The Nation magazine, and host of a new podcast called Contempt of Court with Elie Mystal. He is also author of the book, Allow Me to Retort: A Black Guy's Guide to the Constitution out now in Paperback. Spoiler alert, Elie thinks the Colorado Supreme Court got it right but the US Supreme Court will overturn. Elie, always good to have you on. Welcome back to WNYC.

Elie Mystal: Thank you so much for having me on, Brian. This has definitely ruined my holiday season. I was supposed to be on a beach by now.

Brian Lehrer: Or it made your holiday season because you think the Supreme Court of Colorado got it right. How come?

Elie Mystal: You just read the clause. You just read in a strict constructionist textualist fashion what the Constitution actually says. It doesn't say, as your listeners I'm sure are able to know at this point, it doesn't say that the person has to be convicted of insurrection. It doesn't say that. It says that you have to engage in insurrection. The Colorado Trial Court is the court that ruled that Trump engaged in insurrection. If you remember that ruling from November from a couple of weeks ago, the trial judge then twisted herself into an illogical knot to come up with the ruling that while Trump engaged in insurrection, he wasn't an officer of the United States, under the meaning of the clause.

Which is just facially stupid. That is just a facially ridiculous argument. What the Colorado Supreme Court did this week was basically unravel and reverse that ludicrous argument that Trump wasn't an officer of the United States, and then correctly apply the insurrection or disqualification clause of the 14th Amendment to Trump. That's why they got it right on the Constitution. This is a 215-page decision with a lot of dissents.

They also spent most of their time now understanding what the insurrection clause does, applying the insurrection clause to Colorado State law to determine that Trump could not be on the ballot in Colorado. Brian, what I've just described, a textual strict constructionist reading of the Constitution and the application of state's rights to federal elections. Don't I sound like a Republican? Don't I sound like what the conservatives claim to care about, strict constructionism and state's rights? That's all the Colorado Supreme Court did.

Brian Lehrer: Let's pick apart or go into more detail on various parts of what you just raised. Listeners will open up the phones right here because I know that many of you can't take your eyes off this story. It's so fascinating no matter what you think of it. If you have an opinion about this court ruling, or if you have a question about this court ruling, it is, as Elie was just saying, 215 pages, so there's a lot of legal language in here to understand.

Or if you think this may be legally justified but maybe not a good idea to take Trump off the ballot in this way. We're going to play a clip of Chris Christie in a few minutes saying that despite what he generally thinks of Trump. Anything you want to say on any side of it or ask to clarify what this is all about, 212-433-WNYC, 212-433-9692, call or text. Elie, on that language in the clause, the fact that it does mention various specific federal offices, members of the House and Senate, electors, relatively low down thing, you would think, electors to the electoral college, but does not mention the president specifically.

I guess we have to infer that the president is included in that from the phrase "or hold any office". If they intended the president to be subject to that provision, and they mentioned members of the House and Senate, and presidential electors, why would they not have included the president?

Elie Mystal: There are two really good reasons for that. One, the people they were concerned about in terms of leading the insurrection was not the president. The president in 1866 was thought to be the defender against the insurrection, if you remember. It was congresspeople, senators, state legislatures who rose up in rebellion against the office, against the country. That's who they were concerned about.

Brian Lehrer: This is about the confederacy, that period of US history, right?

Elie Mystal: Right. Look, this is part of my general legal philosophy. People spend way too much time acting like these old dead white men were Svengalis who could anticipate every situation in the world. They couldn't. They were always dealing with the situation right in front of them. The situation right in front of them was the rise of the confederacy, and the people who were the insurrectionists were congressmen, state legislators, and electors.

That's who they wrote down. They included a catchall provision, and we don't have to infer. They say right in the amendment, "any officer of the United States," which clearly includes the president of the United States. I said, there are two reasons. That's the liberal, smart person, democratic reason to understand that excluding the president is just absurd. Would you like a Republican reason? Because I have one.

Brian Lehrer: Sure, Elie.

Elie Mystal: The Republicans claim to be originalists. One of the things about being an originalist is that you're supposed to look at the words and the understanding of the people who wrote the document. Congressman John Bingham is who wrote the 14th Amendment, and multiple times - there was a really good study about this - multiple times over the course of his career, John Bingham referred to the president of the United States as an officer of the United States. He did it at Andrew Johnson's impeachment trial. He did it in a different civil-- he did it at the assassination trial after Abraham Lincoln was shot.

He repeatedly referred to the president as the chief officer of the United States, the executive officer of the United United States. The guy who wrote the words that we are now talking about also said that officer of the United States included the president of the United States. If you're a Republican, if you are an originalist, that should be dispositive on the issue. You can use whatever you want. Common sense, which is what I like to go with, or strict construction originalism, but you get to the same conclusion.

The president is clearly an officer of the United States. Brian, I just thought of one more thing. You know who else thinks the president is as an officer of the United States? Donald Trump, who is right now concurrently claiming that as the executive officer of the United States, he is immune from any prosecution. He's honestly trying to have it both ways. He wants to be an officer when he thinks that it helps him avoid prosecution, and now suddenly doesn't want to be an officer when he's held accountable for his insurrection.

Brian Lehrer: Let me read two text messages that have come in that challenge the idea that this is a good idea. One is a question. It says, what exactly did he need to do to be guilty of insurrection? An example of him doing it with evidence. The other one says the Supreme Court-- Sorry, this says, but the people of Colorado didn't vote for this. Unelected officials, I guess they mean the judges because they're appointed, made the decision. This is subversion of democracy.

Let's take that question, and I take it as a skeptical question. What exactly did he need to do to be guilty of insurrection, and an example of him doing it with evidence, that listener asked for. Because one of the things that's breaking out in this conversation is Special Counsel Jack Smith did not charge Trump with insurrection as the government did charge many of the rioters with, no less convict Trump of insurrection. How can we take it as fact, how did the court take it as fact that Trump in a legal sense committed insurrection?

Elie Mystal: First of all, listener who's all like, "with evidence", look at the television on January 6th. I know listeners who say "with evidence" think that January 6th was like a tourist excursion to the Capitol, but it wasn't, and the rest of us understand that. That's the evidence. In terms of what he needed to do to be called an insurrectionist, Brian, there was a trial in Colorado four weeks in November that people could have watched and listened to where evidence was brought, where witness testimony was heard.

There was a trial and the trial judge determined that he was an insurrectionist. It's just like if there was a trial and I was accused of murder and the trial judge decided that I was a murderer. It's the same thing. That's what happened in Colorado. If people were paying attention, they could have watched it themselves. That's how we get to the Supreme Court, which is just an appellate court that now has to apply that fact that Trump was ruled an insurrectionist to--

Brian Lehrer: My understanding from other coverage is that that fact is going to be a point of contention at the Supreme Court. For example, under the argument that out of those several weeks of hearing that case, there were five days devoted to demonstrating that Trump did engage in insurrection and that that may not be enough to qualify as due process. Address that and talk to exactly how the court did determine that he did engage in insurrection. What did that judge cite?

Elie Mystal: You're making the process argument and this is one of the only, I think, credible arguments to make. It's the argument that was raised in the dissent, that there simply wasn't enough due process to end up at the determination that he was an insurrectionist. Brian, as you know, I have come on your show and screamed my head off at Merrick Garland for not charging Trump with insurrection because I have always believed that you needed to charge Trump with insurrection for exactly this reason, that it would be difficult to kick Trump off the ballot for insurrection without a federal charge as opposed to a state charge of insurrection.

I think this argument is credible. Where I disagree with it is, again, on the conservative's own logic. If as a liberal, I might be quite willing for a federal court to step in and overrule a state court decision that I think was just wrong or insufficiently processed. According to conservatives, states rights means that Colorado gets to make its own determination about who is and who is not an insurrectionist and that the Supreme Court, as an appellate court, is not allowed to question the factual findings of the Colorado court, and instead simply has to apply the factual findings of the Colorado court to the constitution.

That's a Republican argument. My issue with this, again, I think legitimate, again, this was in the dissent, this legitimate question of was there enough process. I happen to think that the majority was right, that there was enough process, but I think it's credible to question if there was enough process. According to Republicans, they're not allowed to question. Then the final thing on this point, again, we're talking about section 3 of the 14th Amendment. Section 3 does not say, it simply does not say that a person has to be convicted of insurrection. It says that a person has to engage in insurrection.

Everybody could see for themselves the engagement on January 6th. It doesn't say that a person has to be convicted. Again, to be Republican for a second, there is a very good original reason why the amendment doesn't say that a person has to be convicted of insurrection. That's because after the Civil War, again, which is what they were concerned about, which is what this amendment is referring to, after the Civil War, Abraham Lincoln and Ulysses S Grant did not round up all of the former Confederates and put them on trial for treason. I would have. I would have rounded them all up, put them on trial for treason, and sent them to a prison colony in Haiti, because I'm just that petty.

That wasn't Grant, that wasn't Lincoln. They didn't round them up. They let them go home. Now, if you want to exclude these former elected officials who engage in insurrection from running from office, again, you can't say that they have to be convicted of insurrection, because there was never going to be a trial for the vast majority of them. They wrote the amendment in such a way as they could still-- Robert E Lee, never tried for anything. They wrote the amendment in such a way that they could stop Robert E Lee from being the chairman of the Joint Chiefs of Staff.

Again, I know that wasn't a real position back in 1866. Allow me historic license. They wrote it so that Robert E Lee couldn't be the Secretary of Defense without having to go capture and try Robert E Lee for treason. That's why the amendment is written that way. Again, to your listeners, I understand that it is squeamish to hold Trump accountable for insurrection absent a federal trial where he is convicted for insurrection, and that is literally a point that I have made before. If we are being strict and Republican, and conservative about an interpretation of the Constitution and an interpretation of the law, you just don't need it.

Brian Lehrer: Listeners, if you're just joining us, we're talking about the Colorado Supreme Court ruling disqualifying Donald Trump from the presidential election ballot there, based on his violating the insurrection clause of the 14th Amendment of the United States Constitution. Let's take a phone call. Lyron in Santa Barbara, California, you're on WNYC with Elie Mystal, justice correspondent for The Nation. Hello, Lyron.

Lyron: Hello, Brian. It's a multi-time caller and always a listener. I love your show.

Brian Lehrer: Thank you.

Lyron: I just wanted to say, Elie, the way that you're breaking down the detail of facts that show the lack of standing the original judgment had in Colorado is absolutely amazing. I'm doing this, "I'm not worthy, bow down to you" right now. Amazing. Here's my concern. Just as the Republicans are doing now, creating mischief by law, and going after Biden for things that are conspiracy theories, what's going to happen if this genie gets let out of the bottle? It's a weird strategic concern that unfortunately has to be pulled outside of morality.

Elie Mystal: Lyron, look, I get this question all the time. It is a legitimate question. It is something that liberals especially are worried about. If I may rephrase it slightly, the question is always like, if we do this, won't Republicans just do it again worse? If we do this for legitimate reasons, won't Republicans just do what we're doing for illegitimate reasons? We've seen it already with the attempt at impeachment of Biden. We're going to see it again. What do we do with that information? My answer to that is of course Republicans are going to do it worse.

Of course, that's why they're here. That's what they do. Anything liberals do, Republicans will use as an excuse for political retribution. Anything liberals do in good faith, Republicans will come back and find a way to do the same thing in bad faith down the road. That's just the party we're living with. That's just the reality of life. Some people, you got a leaky roof and that's just going to happen every storm, and there's not a whole lot you can do about it. The question is whether or not you're going to put the bucket down at all. If we cannot apply the insurrection clause of the 14th Amendment to this particular case, then the insurrection clause of the 14th Amendment doesn't exist.

If we cannot apply the rule of law to Donald Trump, then the rule of law does not exist. While, yes, I also am sad, I guess is the way that I would put it, that in the future, Republicans will do this illegitimately and in bad faith, but the idea that laws should exist is something that is more important to me than worrying about political retribution from enemies. Right now, if you do not hold Trump accountable to normal legal standards, you cannot hold any president anywhere accountable to normal legal standards. That is the bigger danger.

Let's look at a 30,000 foot, what's the most important thing here? To me, the most important thing here is holding Trump accountable because if you can't hold Trump accountable, you can't hold anybody accountable. There's another slight shave here I have for it in terms of like, oh, the Republicans will just try to kick other people off the ballot. Man, the Republicans are already doing every anti-democratic thing they think that they can get away with.

There has been no empirical evidence that restraint by liberals produces restraint by Republicans when the wheel turns. That just doesn't happen. As much as we can say, oh, if we do this, Republicans are going to do this. Republicans are going to do it anyway. That's another way that I get back to my overriding principle, that the rule of law should matter come what may.

Brian Lehrer: Let's take another call. Spook in New Brunswick, you're on WNYC. Hello, Spook.

Spook: Hey, Brian. It's great to be back on the show again. Last time I was the first one to call in to endorse Joe Biden for president in 2020. [chuckles] You have a wonderful guest. Excellent, logical arguments. Fantastic. If I may be humble enough to add one word to the most recent argument is that it's not what the Democrats do, it's what the Republicans say the Democrats do that they're going to turn around and do themselves. An example would be that the Democrats probably didn't steal the 2016 election, but the Republicans turned around and used that as part of their excuse to try to steal the 2020 election.

For the matter at hand here, there's two more principles to look at. One is, first, I agree with the argument you're making that the Supreme Court in Colorado got it right. Second, I agree with what I anticipate you're going to say is that the Supreme Court of the United States will probably overturn that. There's one reason why they could justify overturning it, and one reason why they shouldn't.

First reason is that the office of the United States is different from an office of a representative or a senator, in being that, suppose you elected a insurrectionist from Alabama in 1870, and that guy caused all kinds of trouble for the whole entire country when he only represents a small percentage and was elected by only a small percentage of the population. The president, on the other hand, is going to be elected by the population at large. Maybe there is an argument, I'm not happy with it, but maybe there's an argument that if the majority of American people want an insurrectionist to be the president, then they have the right to vote for him.

Elie Mystal: Just to hop in, the argument that you're talking about was made by Lawrence Lessig in Slate over the last week. This is an argument the liberals are talking about. I have something for it, but go on.

Brian Lehrer: Go ahead. Let's address that one, and then we'll go back for his other point.

Elie Mystal: Just really quickly on that point, and a larger, the Lessig point. What Lessig is doing a practicality argument. What he's saying is that the law should be interpreted this way because it's more practical and pragmatic for the country if we interpret it that way. Again, as a liberal, I generally agree with that. I love pragmatism in law. That's not how conservatives are allowed to think.

If conservatives are going to use pragmatism in the law to save Trump, then I might ask why we didn't use pragmatism in the law to save women's reproductive rights, and why we didn't use pragmatism in the law to save affirmative action, and why we don't use pragmatism in the law to save voting rights. If we're not going to use pragmatism to save voting rights or women's rights, or students' rights, then we certainly are not going to use pragmatism to save Donald Trump. That's my argument to Lessig.

Brian Lehrer: Spook, your second point.

Spook: Boy, that was really good. The second point is now I think that Trump is making legitimate threats to continue to commit insurrection against the United States if he gets reelected, to continue to violate the Constitution. I think that that would be a pragmatic reason to uphold the decision of the Colorado Supreme Court.

Elie Mystal: Spook and Brian, let's talk as adults for a second, because we know the Supreme Court is going to overturn it, but why? I think that liberals have latched onto this officer argument because liberals like Lessig have made it and so it seems reasonable. I don't think the Supreme Court's going to go on this officer thing because I think that if we understand the Supreme Court justices as people, the court understands that calling Trump not an officer of the United States, it's something that's so facially absurd that regular people who are not lawyers will understand that the Supreme Court is absurd and partisan if it does that.

I think they're going to do something way more legalistic. I've written about this in The Nation. There are lots of different ways that you can get out of this without making the absurd claim that Trump isn't an officer of the United States. One of the, I think, easiest ways could be this question of self-executing. This Colorado Supreme Court spent a lot of time on whether the 14th Amendment clause was self-executing. What that means is whether the insurrection clause applies without an act of Congress. There are certain constitutional clauses that are not self-executing.

You need an act of Congress to make them real. I always like to bring up prohibition. Prohibition just gave the government the right to prohibit alcohol. Didn't it say what alcohol? Didn't it say any penalties? It was the Volstead Act that executed the 18th Amendment and made prohibition real. The 16th Amendment, income tax. It's the Federal Income Tax Act that executes the 16th Amendment and makes federal taxes real. Other amendments are self-executing. You don't need a national act of Congress to make them real. The 13th Amendment.

You didn't need to pass a national anti-slavery act to make the 13th Amendment real. Slavery was just illegal as soon as it was ratified, technically, in some states. The 14th Amendment is literally passed nearly the same time as the 13th. I think the 14th Amendment is self-executing. The Colorado State Supreme Court thought the 14th Amendment as self-executing. Again, there's a legalistic argument that you can make that it's not and that you have to have an act of Congress to make the 14th Amendment real in this way. That Congress has to basically pass a law saying insurrection is defined as this, these are the people that can be kicked off the ballot, and for how long, et cetera.

That's a legal way to skin the cat and free Trump without having to make the ridiculous argument that he's not an officer. You already brought up, Brian, the due process argument. They don't have to read insurrection into the amendment exactly, but they can argue, perhaps credibly, that Trump did not receive enough process, and that would be a particularly legally, technically deft move because in that way, you don't even have to overrule the Colorado State Supreme Court.

You just have to remand it back to Colorado for further proceedings, that Trump gets more of a trial and more process, and we're not making a decision. We're just following due process. These kinds of more technically pencil neck kind of solutions, I think, are much more a likely way for Trump's hand-picked justices to get him off the hook, than something as bold and absurd as the, he's not an officer or he didn't commit insurrection," or anything like that.

Brian Lehrer: You're saying this may get sent back to the Colorado District Court to hear more evidence on whether Trump engaged in insurrection. Is that what you're saying?

Elie Mystal: It absolutely could. If you think about Robert, I've called Roberts before the single-best republican operative in the country. The man, I disagree with him on so many things, but the man's not dumb. One, you got to think about pairing this with the other big Supreme Court issue that we haven't talked about, which is whether or not Trump is going to be immune from prosecution, Jack Smith's lawsuit trying to force the issue trying to make sure that the court rejects Trump's immunity argument before the March 4th trial. You can imagine these decisions coming out kind of in tandem.

We're going to remand the Colorado case back to Colorado for more proceedings, and oh, by the way, we are going to do the right thing and say that Trump isn't immune from prosecution and let the Jack Smith prosecution go forward. It sounds a little bit Solomon-like, but what it really does is that it refocuses the question where arguably the whole country should want the question to be on whether Trump is an insurrectionist or not. If you refocus the question that way the court could 7281, kick the Colorado case, move forward the Jack Smith case, and claim that it is not partisan.

Brian Lehrer: Interesting. So much to follow up on there, including if it goes back to the Colorado court, and they hold a hearing on whether Trump engaged in insurrection, and they conclude with more due process that he did. Then it goes back to the Supreme Court. Just from Colorado, does that disqualify Trump everywhere because the constitution applies everywhere? Hold that answer because we have to take a break and we'll continue with Elie Mystal and more of your calls and texts right after this.

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Brian Lehrer on WNYC as we continue to discuss the implications of the Colorado Supreme Court ruling this week that Donald Trump violated the insurrection clause of the 14th Amendment and therefore is barred from running for president, at least in Colorado. We're talking about this with Elie Mystal, justice correspondent and columnist for The Nation magazine, host of the new podcast Contempt of Court with Elie Mystal, and author of the book Allow Me to Retort: A Black Guy's Guide to the Constitution, out now in paperback.

If, whether immediately or after it goes back to Colorado and comes back to the Supreme Court or however it happens, if the Supreme Court somehow upholds this finding that Trump violated the insurrection clause, but it's being brought by one state, Colorado, it's not like they've had these trials in the 50 states and other places that get to vote for president, does that bar Trump nationwide?

Elie Mystal: No, not at all, not even close. There are a couple of terrible reasons for it. Again, there are a couple of republican federalism reasons for. Here's the right question to ask, Brian; if Trump is disqualified from holding office, is he disqualified from being on a ballot for that office? The answer to that question is going to really depend on what state you live in and what state court you have, because it's absolutely a possibility that the New York State court would apply its election rules differently than an Alabama State court. That's just the world we live in.

We don't have one federal election system, we have 50. If you want Trump to get off the ballot, you got to sue him in all-- Which crew, by the way, basically has, but you have to sue of all 50 and get all fifty 50 favorable rulings in order to kick him off the ballot. That's not going to happen in Texas. That's never going to happen in Florida, and it's probably never going to happen in Georgia. There are many states where Trump is going to be on the ballot. Doesn't matter, Supreme Court it says an insurrectionist, Jack Smith could win his lawsuit, Trump could be in jail, he's still going to be on the ballot in Alabama.

People need to hold their horses on that. I was just talking about this legally technical question of self-executing. There's no federal self-executing mandate that kicks a person off the ballot in every individual state. That's just not how our federal election systems work. There are two ways that I've tried to, not exactly wet blanket this, but make people understand the reality here. One is that the Supreme Court is almost certainly going to overturn it.

Two is that even if they don't, you got Colorado. Wake me up when you get a favorable ruling in Arizona or Wisconsin, or a battleground state. Because Trump wasn't going to win Colorado, no way. That's just the reality of what we're seeing. I think politically the question is whether or not the Republicans want to run a candidate who potentially can't be on the ballot in all 50 states, but if I know anything about how debased and captured that party is, they will still, like Lemmings, follow their leader right off the plate.

Brian Lehrer: A few people are texting questions about a particular part of the insurrection clause. Let me read the part that they're referring to, and then I'll frame the question that they're asking. Because the clause says a person would be disqualified from holding office if they, "Have engaged in insurrection or rebellion," here comes the part, "or given aid or comfort to the enemies thereof." Our listener asks, Trump gave aid or comfort to the insurrectionists. Even if he didn't commit insurrection himself. This argument goes, the listener writes, "He literally said, we love you. Why do analysts ignore this point?" Writes Charles in Harlem.

Elie Mystal: I've gotten that a lot, Charles. I've gotten that a lot. The best way I can explain in terms of why people are ignoring it is because aiding and abetting has a specific legal meaning. There's a whole canon of law about what aiding and abetting a crime really entails, and it's not I love you. I totally get where it's coming from, but when you think about aiding and abetting, you really got to think about aiding, abetting being an accomplice in a murder situation.

If you imagine somebody murdering a shopkeeper and you say, "I love you," that's not aiding and abetting the murder of the shopkeeper. The aiding and abetting is really like giving the murderer the gun. Hey, the shopkeeper smokes a cigarette between 11:55 and midnight every day, just in case you're wondering.

Brian Lehrer: We know, and I think this is a point that we already know is going to come up in the Jack Smith case against Trump, that he didn't just say, "I love you," or, "We love you." A lot of people, while the riot was going on, were asking him to intervene because he had the power to call it off. He didn't. That's aid and comfort if it's not direct engagement.

Elie Mystal: Legally speaking, to me it's more direct engagement than it is aiding and abetting. The conspiracy to overthrow the government was ordered by Trump and benefited Trump. Trump is a primary beneficiary of the insurrection. That's more about engaging in insurrection that it is about aiding and abetting and insurrectionist. An aider or abetter, since we've been talking about civil war so much, it's top of mind, but think about Dr. Samuel Mudd who set the leg of John Wilkes Booth after he broke it after the assassination of Abraham Lincoln. Didn't tell the authorities that he was harboring John Wilkes Booth. Samuel Mudd got convicted for aiding and abetting the assassination. He was later pardoned by Andrew Johnson. That's an aider and abetter. You got to do something.

Brian Lehrer: The phrase is aid or comfort. Is comfort different than aid, legally?

Elie Mystal: Not really. [laughs] I'm hedging a little bit because I'm sure there is some case that I'm not aware of that slices that salami, but it's a real thin slice if we're going to call that [crosstalk]

Brian Lehrer: One more thing before--

Elie Mystal: I think the better way of understanding it is that if you have engaged-- people are acting like aiding and abetting is a lower standard than engaging in insurrection, and I'm just trying to say it's the same standard. The idea that there is a step lower, a lesser included clause here that we could be doing that would be easier to prove, it's not actually easier to prove it. If you can approve aiding and abetting, you can probably prove engaged in insurrection already.

Brian Lehrer: We're already over time, but I want to touch two more things real quick, and with thanks and appreciation to our next guest for standing by. Chris Christie, the anti-Trump candidate in the Republican primaries has come out against barring Trump from the ballot this way. Here's a clip of Chris Christie campaigning in New Hampshire after the ruling came down.

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Chris Christie: It's bad for the country if that happens. Now, the other reason I believe that is because he will have to incite insurrection, be a part of an insurrection, for him to be excluded. There's been no trial of him on that.

[audio playback ends]

Brian Lehrer: Another part of what Christie said, which I probably should have pulled instead, because I think it's the more dramatic, more emotional part, is that it's just bad for democracy. It's going to make half the country think that whoever gets elected president next is illegitimate because Trump didn't have the chance because a court removed him.

Let's fight him at the ballot box, as Christie himself is doing, and beat him, and try to put this whole thing behind us rather than give this more fuel for who knows how long in the future by making half the country, or it may not be half, but some significant minority think that the whole electoral process was illegitimate.

Elie Mystal: Yes, Brian, it's just bad for the country when judges follow the law and hold people accountable. It's just bad when people we like are subject to criminal prosecution and the consequences of their own action. That's what Christie is arguing. That the law shouldn't apply to Trump because it makes Trump voters sad. I just don't agree with that. I just do not fundamentally agree that it is bad for the country to hold people accountable for their actions.

As I said to the previous caller, if we're going to go down that road, if we're going to go down the road that some laws, even if you think they're in the Constitution, they're just bad if the Supreme Court follows them, then I don't start with Trump. I start with reproductive rights. Because it's just bad for the country when the voters do not get to decide whether or not they have reproductive rights, but politicians can take them away.

Brian Lehrer: Last thing, and this, I'm going to ask you to do this in under a minute. This is in the category, something to watch, when the Supreme Court actually takes the case. You referred in your piece in The Nation, and the Colorado Court did as well by name refer to a ruling that Justice Gorsuch has made previously. What are we watching Justice Gorsuch for, obviously a Trump appointee, in the is he being consistent category when this goes to the Supreme Court? Real quick.

Elie Mystal: Colorado excluded a man named Abdul Karim Hassan who wanted to run for president in Colorado on the Colorado ballot. He was a naturalized citizen. The Constitution says that only natural-born citizens can hold the office of president. Neil Gorsuch, when he was a circuit judge for the 10th Circuit which oversees Colorado, ruled that Colorado could exclude Hassan from the ballot because of a literalistic reading of the Constitution, natural-born versus naturalized, and because states rights, Colorado gets to decide who's on Colorado's presidential ballot. That was Neil Gorsuch. He was quoted in the Colorado State Supreme Court opinion, and so we're going to see if Gorsuch has the courage of his own convictions.

Brian Lehrer: All right, listeners. One for your program to follow along on when this case gets to the Supreme Court. Elie Mystal, justice correspondent and columnist for The Nation, host of the new podcast, Contempt of Court with Elie Mystal, author of the book, Allow Me to Retort: A Black Guy's Guide to the Constitution. Listen to our book interview with Elie from last year and it's now out in paperback. Elie, thanks.

Elie Mystal: Thank you so much, Brian.

 

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