Watch the full episode here:
And now this case is even worse. As I said, the district court case in November actually rejected the petition to remove Trump, but only after the ruling against him on every last issue. So here is that district court ruling from November 17. It didn't get a lot of media attention because it refused to remove Trump from the ballot, but it completely contaminated his case and showed what Democratic Party judges are willing to do. Here's part of what she wrote.
The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of "insurrection."
A two-hour riot, by people, none of whom wielded guns inside the Capitol. And remember the only people who died on that day, on January 6, were four Trump supporters, one of whom was shot by the Capitol Hill police. Two of them died of heart attacks because they hadn't left their couch in a long time and were very unhealthy. The idea that they were going to lead some sort of insurrection against the most militarized government in the history of the world is a complete and utter joke. Another one died of a speed overdose. All Trump supporters. Of course, the media lied continuously, as they covered extensively at the time, by claiming that the Trump protesters bashed the head of a Capitol Hill police officer with a fire extinguisher and murdered him when the autopsy found that he didn't die on January 6, but January 7, that he died of natural causes, he didn't even go to the hospital. He called his parents that night and said he was fine.
So, there were police who were injured, but the only people who died on this day were Trump supporters. And yet this judge says, “It easily satisfied his definition of an insurrection.”
In the context of the speech as a whole, as well as the broader context of Trump's efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021, and his long-standing pattern of encouraging political violence among his supporters, the Court finds that the call to "fight" and "fight like hell' was intended as and was understood by a portion of the crowd as, a call to arms. These findings support the conclusion that President Trump's calls for imminent lawlessness and violence during his speech were likely to incite such imminent lawlessness and violence.
That's the phrase that the U.S. Supreme Court used in Brandenburg for the only kind of political speech that falls outside of First Amendment protection: inciting imminent, lawless violence.
When President Trump told his supporters that they were "allowed to go by very different rules" and that if they did not "fight like hell," they would not "have a country anymore," it was likely that his supporters would heed his encouragement and act violently. We therefore hold that this final prong of the Brandenburg test has been met. In sum, we conclude that President Trump's speech on January 6 was not protected by the First Amendment.
We're going to show you what Trump actually said about violence. The only thing he said about violence was “Don't use it. Be peaceful.” But the Brandenburg Court has always said you're allowed to even advocate violence as long as it's not designed to incite imminent violence, meaning you have a crowd gathered and you tell it to go burn a house down. So, again, if you want to accuse Trump of being an insurrectionist, charge him with that crime. But that's not what this court did.
…in the Court’s view, there is a difference between the Secretary having the authority to prohibit a candidate from being put on the ballot based on what Ms. Rudy described as “an objective, knowable fact” and prohibiting a candidate from being put on the ballot due to potential constitutional infirmity that has yet to be determined by either a Court or Congress. The Court holds that the Secretary cannot, on her own accord, keep a candidate from appearing on the ballot based on a constitutional infirmity unless that constitutional infirmity is “an objective, knowable fact.” Here, whether Trump is disqualified under Section Three of the Fourteenth Amendment is not “an objective, knowable fact.”
So, this is the key point: obviously Trump has not been charged with the crime of insurrection. That's the argument he made. He never had a trial on that. Any response of those trying to keep him off the ballot was, well, there are other constitutional requirements. For example, you can't run for president if you're younger than 35 years of age or you can't become president if you're younger than 35, you can't serve more than two terms. So, they were saying, well, if somebody comes here and tries to get on the ballot and they're under 35, or they've already served two terms like President Obama or President Bush, we wouldn't wait for a trial. Of course, we would be able to tell them that they can't be on the ballot. And this is the one point where the court is saying that there's a difference between something so obvious, like age or how many terms you served as president, where you're ineligible, and a complex question like whether someone is guilty of an insurrection. She's pointing out that there's a difference between an objective, knowable fact, such as the age, and prohibiting a candidate from being put on the ballot due to potential constitutional infirmity that has yet to be determined by either a court or Congress. In other words, the question of whether Trump engaged in an insurrection has not been determined. It's not obvious like someone's age or how many terms they've served and therefore, they said,
While the Court agrees with Intervenors that the Secretary cannot investigate and adjudicate Trump’s eligibility under Section Three of the Fourteenth Amendment, the Election Code gives this Court that authority.
For Section Three of the Fourteenth Amendment to apply to Trump this court must find both that the Presidency is an “office . . . under the United States” and that Trump took an oath as “an officer of the United States” “to support the Constitution of the United States.”
So, this is the key point: obviously Trump has not been charged with the crime of insurrection. That's the argument he made. He never had a trial on that. Any response of those trying to keep him off the ballot was, well, there are other constitutional requirements. For example, you can't run for president if you're younger than 35 years of age or you can't become president if you're younger than 35, you can't serve more than two terms. So, they were saying, well, if somebody comes here and tries to get on the ballot and they're under 35, or they've already served two terms like President Obama or President Bush, we wouldn't wait for a trial. Of course, we would be able to tell them that they can't be on the ballot. And this is the one point where the court is saying that there's a difference between something so obvious, like age or how many terms you served as president, where you're ineligible, and a complex question like whether someone is guilty of an insurrection. She's pointing out that there's a difference between an objective, knowable fact, such as the age, and prohibiting a candidate from being put on the ballot due to potential constitutional infirmity that has yet to be determined by either a court or Congress. In other words, the question of whether Trump engaged in an insurrection has not been determined. It's not obvious like someone's age or how many terms they've served and therefore, they said,
The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.”
To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President.
Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional.
The Court holds that it is unpersuaded that the drafters intended to include the highest office in the Country in the catchall phrase “office . . . under the United States.” (DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO, November 17, 2023)
So that is the only reason that the November ruling didn’t remove Trump from the ballot, but it issued all kinds of damning findings against Trump. And it was a judge who was so obviously biased against him. You couldn't find a more flagrant Democratic Party activist or liberal activist than this judge. Donated money to a resistance group right before she became a judge. It's almost certain that the only media outlets she watches are the ones that constantly drum into people's heads that Trump is an insurrectionist. The way courts work is that when you go to a court in the first instance and there's a trial or a hearing of some kind, what the judge finds factually is really not reversible by the Supreme Court. They can reverse it on abuse of discretion grounds if it's very clearly wrong. But in general, they give deference to those findings. The only thing a Supreme Court really reversed from a lower court is a legal conclusion. And that is exactly what this Supreme Court did on a 4 to 3 ruling. Four judges said the Judge below was right about everything. The only thing she got wrong was this legal conclusion that the president and vice president are not included in the 14th Amendment prohibition against running if you did an insurrection. We reversed on that. We find the 14th Amendment does apply to the president and therefore Trump is banned from the ballot.
So here's the ruling. It's Anderson versus Griswald. This was struck yesterday. And here's the summary of what the Supreme Court four judges on the Supreme Court, the three judges in dissent, all wrote separate opinions. We're just going to show you a small part of those because the key point they emphasize is the one that I've been emphasizing, which is that Trump has never been charged with this crime that they're using to say that he should be disqualified. There is no due process to call him an insurrectionist. But here's what the Colorado Supreme Court said.
In this appeal from a district court proceeding under the Colorado Election Code, the Supreme Court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.
I want to bring up a tweet. I don’t think we have it but the key point, and I'll just explain this to you, was made by Jason Willey, The Washington Post columnist who's quite a good and objective columnist. He made a very interesting point, which is that all seven judges on the Colorado Supreme Court are Democrats. It's a very blue state. They were appointed by Democratic governors. Four of them went to Ivy League schools, Yale, Penn and Harvard. And three of them went to the University of Denver Law School. So, they're all Democrats. You can't say the 4 to 3 ruling broke down on party lines because there are no party lines. The fully Democratic court. The way it broke down was the four judges who removed Trump from the ballot, all went to Ivy League schools. The three judges who dissented and said the court had no right to remove Trump, all went to the University of Denver Law School. I think the reason why that's so interesting and important is that this is something we've been pounding for a long time, which is what's going on in the United States and the broader Western world that when 2016 happened and British voters enacted Brexit and left the EU, a huge shock to the Western establishment, then four months later, they had the biggest shock of all, which is that Donald Trump defeated Hillary Clinton to become president in the U.S. Western elites went into a panic. They concluded that they could no longer trust their populations to be free to have free speech and to vote freely in elections because when they do, they make the wrong choices and they need to be controlled. They need to be guided. That's when this whole disinformation industry emerged, funded by billionaires and security state agencies, where all of these people from colleges proclaimed themselves “disinformation experts” out of nowhere and started to decree what was true and false for people so that we could remove false ideas from the Internet so that people weren't contaminated or misled by them anymore. They would only get elite-approved views over the Internet. That's what the censorship regime that really emerged after 2016 is about. And now this attempt to put Donald Trump in prison or remove him from the ballot, is a very elite idea, the idea that the peasants cannot be trusted to be free. And so, it's not surprising to me that the division here was between people educated at Ivy League schools on the East Coast and people who went to a local law school in Colorado at the University of Denver. That was the breakdown. Here's what the court said.
We hold as follows:
Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed a reversible error.
• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.
• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”
• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.
• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.
And then they went on to just affirm and accept every other finding of the district court since it was all against Trump, the District Court did not abuse its discretion in admitting portions of the January 6 report into evidence at trial. The District Court did not error in concluding that the events at the Capitol on January 6 constituted an insurrection. The district court did not air in concluding that President Trump “engaged” in that insurrection through his actions. President Trump's speech inciting the crowd that breached the U.S. Capitol on January 6 was not protected by the First Amendment.
I mean, this is a very dangerous ruling because of how much it erodes core free speech protections under the First Amendment to find that Trump's January 6 speech is outside the bounds of the Brandenburg protection and that this two or three-hour riot was an insurrection, an intended insurrection that Trump himself incited and instigated. Despite not being charged with that, what would stop a Republican judge from going and taking all the members of Congress over the years, the Democratic members of Congress who have objected to the certification of presidential elections, declaring them insurrectionist without any trial or criminal proceeding or due process and ordering them removed from the ballot or from Congress because just the court finds they're insurrectionists. Nothing.
Liberals in the United States do see Trump as a Hitler figure and if you see Trump as a Hitler figure, which I promise you, they do, they talk themselves into that every day, even though he was president for four years and didn't do the hallmark Hitlerian things like invading other countries for conquest or setting up death camps for dissidents and minority groups. Just little things like that that Trump didn't do over four years. They still aren't convinced. No. This time he's really going to be Hitler. And if you believe that, and they do, they're not just pretending, they really believe that. They believe this for a long time. You are going to resort to things like this to keep Hitler out of power and to keep Biden in power because you believe that the only way to save American democracy is if you override American democracy to do it. This court ruling it’s such a disgrace, it is such a fraud. Even three Democratic members of the court said that. Here is what the court went on to say:
The Constitution delegates to states the authority to prescribe the “Times, Places and Manner” of holding congressional elections, U.S. Const. art. I, § 4, cl. 1, and states retain the power to regulate their own elections, Burdick, 504 U.S. at 433.
But does the U.S. Constitution authorize states to assess the constitutional qualifications of presidential candidates? We conclude that it does.
There was a case back in 1868, Griffin's case, that actually decided this issue. And they essentially decided in a way that would have precluded the court from removing Trump from the ballot. And listen to what they do with the Supreme Court case from 1868 to get rid of it, just to say we're not following it.
Griffin’s Case concludes that congressional action is needed before Section Three disqualification attaches, but this one case does not persuade us of that point.
That's what that Supreme Court ruling said, that if someone is disqualified under the 14th Amendment, you need a congressional action to remove them. That the Supreme Court said in 1868. So, this court says, “But that one case does not persuade us of that point.” It's a Supreme Court case.
Intervenors and amici assert that Griffin’s Case “remains good law and has been repeatedly relied on.” Because the case is not binding on us, the fact that it has not been reversed is of no particular significance. And the cases that cite it do so either with no analysis
We do not place the same weight the district court did on the fact that the Presidency is not specifically mentioned in Section Three. It seems most likely that the Presidency is not specifically included because it is so evidently an “office.”
Yeah, it's a Supreme Court case, we're not bound by. It's not a very good case. Most cases don't even respect that much. So, we don't care. We're not going to follow that.
We do not place the same weight the district court did on the fact that the Presidency is not specifically mentioned in Section Three. It seems most likely that the Presidency is not specifically included because it is so evidently an “office.”
Do you see how they're going out of their way to just throw away any argument that stands in the way of what they want to do? Honestly, when I went to law school, I was very excited. I was so passionate about the law. And when I got out of law school, I worked at a very big Wall Street firm and I decided I was going to go there for as long as I could stand it just to learn everything I could about the law. It was a very good law firm filled with extremely smart people. The law firm—Wachtell, Lipton, Rosen & Katz—where George Conway was a partner, husband to Kellyanne Conway. A lot of other very well-connected people. It was a very smart lot. They were defending Goldman Sachs and insurance companies. I knew I didn't want to be doing that with my life. So, I wanted to go and absorb everything I could about the law and then start my own law firm, which I did. And it grew. And we represented a lot of people. But the main reason why I grew tired of the law is because this is what judges do. They just cheat all the time. To get the outcome they want. I thought it worked in my favor. Sometimes it worked against me. But the judges are a joke. Not all of them, but many of them. And you see them here just throwing away precedent that they don't want to deal with, trying to get around the fact of working the 14th Amendment list, “all these other offices, but doesn't list president and vice president.” And just ignoring the fact that even though Trump was never charged with being an insurrectionist, they have to claim he is one to get this rolling, that they want four Democratic judges from the Ivy League schools wanting to prevent the American people from a free choice in this election. That's what this is.
Let me show you quickly the core of two dissents, two dissenting judges. Here is one of them.
DISSENT
Dismissal is particularly appropriate here because the Electors brought their challenge without a determination from a proceeding (e.g., a prosecution for an insurrection-related offense) with more rigorous procedures to ensure adequate due process.
This is the key. This is why one of the dissenters and really all of the dissenters agreed with this, said that this case had to be thrown out. So obviously. Because it required the court to conclude that January 6 was an insurrection and that Trump engaged in insurrection on January 6, even though it's done without a determination from a proceeding, meaning a prosecution for an insurrection-related offense, they don't have that. They don't have the prosecution for an insurrection-related offense because Trump has not been accused of that. And that criminal process, if it had existed, would entail “more rigorous procedures” to ensure adequate due process. That is so obvious. If you charged Trump of being in an insurrection as he has a whole litany of rights, then you would be able to embrace and invoke and then you'd have a jury trial and you would have a finding of guilt or innocence or not guilty or guilty. They don't have that here. So how can he court without a trial? Determine that Trump is an insurrectionist just because MSNBC says he is one. The dissent goes on:
Instead, the Electors relied on section 1-1-113 and its “breakneck pace” to declare President Trump a disqualified insurrectionist. See Frazier, ¶ 11, 401 P.3d at 544.
As President Trump, argues and the Electors do not contest, section 1-1-113’s procedures do not provide common tools for complex fact-finding: preliminary evidentiary or pre-trial motions hearings, subpoena powers, basic discovery, depositions, and time for disclosure of witnesses and exhibits.
This same concern was raised in Frazier; the then-Secretary argued that “it is impossible to fully litigate a complex constitutional issue within days or weeks, as is typical of a section 1-1-113 proceeding.”
SECOND DISSENT
Our government cannot deprive someone of the right to hold public office without due process of law.
I just this is so well stated and so obviously true that it is shocking to me. Honestly, I've seen a lot of bad court cases. I've seen a lot of abuse of the judicial system. We've been covering it over the last two years. How is this not so obvious? Like I said, you don't need to be a lawyer to see this. Our government cannot deprive someone of the right to hold public office without due process of law.
Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office. Procedural due process is one of the aspects of America’s democracy that sets this country apart. (Anderson v Griswold, December 19, 2023)
The reality is the Liberals don't believe in due process. They don't believe in due process. The whole MeToo movement was about destroying people with no opportunity to be heard in court. They frequently vilify people as guilty of all sorts of things by mob justice or social media justice. It's not surprising that they want to declare Donald Trump an insurrectionist without bothering to charge him with that crime. Even though due process is central to our entire constitutional framework, to the ability to ensure fairness, it is not a value liberals believe in, and they've proven that over and over, and then obviously includes liberal activist judges on the Colorado Supreme Court.
Here's the video of Trump, by the way, on January 6 when he was talking to the assembled protesters, his supporters. This was the only time he mentioned or spoke directly to the question of whether or not violence should be used when they go to the capital. Here's what he said.
(Video. January 6, 2021)
Donald Trump: I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today.
How should they protest? This way:
Donald Trump: […] over to the Capitol building to peacefully and patriotically make your voices heard? Today, we will see whether Republicans stand strong for the integrity of our elections.
Does that sound like inciting violence? Telling a gathered crowd to march peacefully on the capital. That was barely mentioned in the ruling but it would be if you had an actual criminal proceeding. And you had due process.
Here was Professor Jonathan Turley, back in August, I believe, addressing the possibility that Trump could be disqualified on this theory, the disqualification of Donald Trump and other legal urban legends. And this is what Turley said about the case brought by Jack Smit, the criminal case:
The Disqualification of Donald Trump and Other Legal Urban Legends
Not only did Smith not charge him with any such crime, but there was little evidence that even the most radical defendants charged were planning to overthrow the nation’s government or were part of a broader conspiracy.
That leaves us with the argument that any effort to stop a constitutional process is akin to an insurrection or rebellion under the 14th Amendment. If that were the standard, any protests — including the anti-Trump protests and the certification challenges to electoral votes in 2016 — could also be cited as disqualifying. If that were the case, figures such as Rep. Jamie Raskin (D., Md) could be summarily purged from office for having sought to overturn an election.
We would be left on a slippery slope, as partisan judges and members would seek to block opposing candidates from ballots, all supposedly in the name of protecting democracy. (Jonathan Turley, August 21, 2023)
One of the articles I thought was most interesting was one written by former Congressman Peter Meijer. You may remember him. He was a Republican from Illinois. I believe he only served one term, maybe two terms in office as part of the Republican Party. And he prided himself on being a moderate. He hates Trump. He hates him. He was only one of ten House Republicans, as he says in this article, to vote for Trump's impeachment. On January 6, he joined Liz Cheney and Adam Kinzinger in that crowd and he didn't even end up running for reelection because most of the people who voted to impeach Trump lost in the primary. But he really hates Trump and he hasn't stopped hating him. He's been condemning him since he left Congress. And yet today he wrote in the Free Press this article:
Colorado Undermines Democracy in the Name of Democracy
I was one of ten House Republicans who voted to impeach Trump after January 6. I think the court’s decision is shameful. Peter Meijer writes.
For years, we’ve been told that Donald Trump is a worse-than-Hitler threat to democracy and that those who opposed him—leading Democrats, the courts, Noam Chomsky, Michael Avenatti, Rachel Maddow, the hosts of The View, even old Twitter—were just trying to protect it. It’s odd then to now be told that the best way to save democracy is by banning Trump from the ballot.
January 6 was my third day in Congress. I had to be evacuated from the House chamber after a violent mob stormed the Capitol that day. I considered it then, and consider it now, a dark and shameful day. But no federal court has found, nor is the Justice Department even alleging, that Trump is guilty of anything close to insurrection or rebellion. And yet here is the highest court in an American state taking upon itself to conclude a violation of federal statute. (The Free Press, Peter Meijer, December 20, 2023)
I mean, this is the point and everyone can see it. But Democrats don't care. I mean, they are seeing the same polls we're seeing. They see Biden collapsing. He was already in so much political trouble. And now you have a large part of the Democratic base, young voters, Muslims in Michigan, saying they will never vote for Biden. Some of them are probably going to get coerced and propagandized, manipulated by an avalanche of propaganda saying Trump is Hitler, into changing their minds about voting for Biden. But a lot of them are going to stay home. I can tell you that for sure. People who feel strongly about Biden's decision to fund Israel's war in Gaza, to provide the bombs, to stand by Israel, to isolate the U.S. at the UN, to block a cease-fire resolution by having you have to use its veto to protect Israel. A lot of people who would have voted for Biden in 2020 feel very strongly against this war. Very strongly. And they're shocked to see Biden Going out of his way to do everything to protect Israel. Even though Biden's entire career, he's been one of the most pro-Israel politicians in Washington, he's in a lot of trouble politically. And amazingly and this is the oxymoron, this is the paradox of American political life.
As The New York Times today says:
Trump’s Legal Jeopardy Hasn’t Hurt His G.O.P. Support, Times/Siena Poll Finds
More than 60 percent of Republicans think that if the former president wins the primary he should remain the party’s nominee — even if he is subsequently convicted of a federal crime.
Voters in the poll were also equally split — 47 percent to 47 percent — over whether Mr. Trump genuinely believed the election had been stolen or was knowingly making false claims. And, again, more than 80 percent of both Democrats and Republicans sided with their political tribes.
Perhaps as a result, the array of charges against Mr. Trump so far does not appear to be helping Mr. Biden politically. Mr. Trump leads Mr. Biden 46 percent to 44 percent among registered voters. (The New York Times, December 20, 2023)
I think Democrats have so overplayed their hand out of desperation and panic. They are engaging in such a blatantly authoritarian policy. I mean, here you see Trump had 54% of Republican voters in July, and now it's gone up to 64%. So, the more he's indicted, the more Democrats abuse their power and the justice system, the more support Trump seems to attract. I really believe that American citizens are going to resent being told that they don't even have the option to defeat Trump at the ballot box if they're not even allowed to vote for Trump.
They all watched January 6. They all watched what Trump did. And the polls show that they don't believe he really committed serious crimes. Their faith in the justice system is so low that they don't care that he's accused of crimes because they don't trust the process. They don't trust institutions of authority inside the United States, and nor should they. And this decision by four Democratic Party judges, we’ll see what the Supreme Court does with it. But four Democratic Party judges, all from Ivy League schools on the East Coast, who under the most precarious and flawed legal ruling that is evident to anybody, a basic due process objection, telling Americans that they're not even allowed to vote for Trump. I think is going to engender even more resentment still. And all these arguments that Democrats think they can win on that Trump is a grave threat to democracy is going to be very, very difficult to maintain. They advocate censorship, while they try and imprison Joe Biden's primary opponent, and while they try and even deny Americans the right to vote for Donald Trump if they want to.
So that concludes our show for this evening.
