Donald Trump's legal team
facing a very busy 24 hours ahead, Trump's lawyers are expected to appeal
two decisions to remove him from the primary ballots in Colorado.
And a man with us now
to explain all of it, CNN senior legal analyst Elie Hoenig at the magic wall.
Really at any moment now, it could happen at any moment.
We expect the appeals appeal to appeals will have to wait and see
just a step back.
But what's the landscape right now in this new year?
Yeah, so the 14th Amendment, Section three, has gone from relative
constitutional obscurity to the spotlight very quickly.
Let's just remind ourselves what it says.
No person shall hold any office who shall have engaged in insurrection
or rebellion or giving aid or comfort to the enemies thereof.
Seems fairly straightforward.
The problem is it is being interpreted and applied very differently across the map.
Let's take a look at the current status quo.
These six states have rejected challengers
efforts to try to remove Trump from the ballot.
Some of them are still being appealed, Arizona and West Virginia.
These 11 states, we've had challenges to Trump's eligibility brought
but then withdrawn by the challengers for reasons that are varied.
Now, we have, of course, now two states, Colorado and Maine, who've decided
Trump is off the ballot.
He committed insurrection. 14th Amendment applies.
We could see appeals in the Colorado case to the U.S.
Supreme Court, in the Maine case into the Maine State Level courts at any moment.
But as you can see,
I mean, this map tells you all you need to know about
just how much chaos there is, state to state
with any sense of what the Trump's legal team's arguments will be.
In the appeals.
So this is a complex sort of legal question.
There's a lot of different issues swirling.
But let's break it down into three questions.
First of all, who decides now, if we look at Section five of the 14th Amendment,
it tells us that the Congress, meaning the US Congress, shall have the power
to enforce by appropriate legislation the provisions of this article.
Trump's team will argue that means Congress and it's not up to the states.
The opponents will argue no states
can still make their own processes to go along with Congress.
If that's true, if the states do have the right
to do their own processes, that brings us to the second question.
By what process, how much due process is owed here?
If we look, for example, at Colorado, look,
these don't have to be criminal trials.
That's the highest level of due process.
But the question is, was there enough?
Colorado had a five day trial.
They had some live witnesses.
They had a member of Congress.
They took in documents some of it has hearsay that wouldn't be admissible.
But again, it's not a criminal trial.
If we look at the Maine process, there was less that was a one or two day hearing.
The only witness was a law professor.
The secretary of state relied on documents, including YouTube clips.
So the question is, was either of these enough due process?
And then the final question is, and this one may seem a little odd.
Is the president an officer of the United States?
I think logically you.
Of course, there actually is an argument that's made sometimes
that if you look at the construction of the Constitution,
the president is actually separate from an officer of the United States.
I think that one's a long shot.
But look for that argument to be made as well.
Colorado will be appealed to the Supreme Court.
Look, this seems to be a moment to screaming out for no ambiguity.
Yes. This is this is exactly why we have a Supreme Court.
We have a massive constitutional issue.
We have all sorts of unknown.
We have major implications.
We have inconsistency in how it's being applied.
We're looking for two things. First, will they take the case?
They don't have to take any case.
But if Trump files that appeal today, they can tell us
yes or no, we're taking it. That could happen at any moment.
And then, of course, if they take it, how will they rule?
Let me just say this.
Nobody knows This is uncharted territory.
So it'll be in their hands in all likelihood.
Just to underscore that point, there is no legal precedent
here is nothing that people are kind of drafting off up to know how this is.
We can pull on various strings that are out there,
but there is nothing on point.
We're going to get brand new law when they interpret this.
Fascinating and somewhat unsettling.
All right. Thanks many thanks.
CNN's Zachary Cohen joins us now.
And Zachary, help us understand the arguments being made in these appeals.
What are the former president's chances
Yeah, Audie, first, it's really important to know
that the looming political calendar really is creating a sense of urgency here.
And it's one of the reasons why
there's this mounting pressure on the US Supreme Court to weigh in on this issue,
this 14th Amendment issue that we've seen come up in Colorado and again
in Maine, where they say that under the 14th Amendment, Section three Trump
should be removed from the primary ballot because he engage in an insurrection.
Now, that is already going to mean the stage is set.
Now, sorry to go before the Supreme Court.
When Trump appeals this decision, he's going to ask the Supreme Court
to essentially overturn the Colorado Supreme Court state level court's
ruling that he should be removed from that ballot that would effectively
put him back on the ballot for the primary.
But, you know, the Supreme Court
has to choose whether or not it wants to it wants to take up this case.
But at least his appeal will at least set the stage for that possibly to happen.
Now, we also expect Trump to appeal a similar decision in Maine,
where the secretary of state
there also ruled that he should be removed from the ballot.
That appeal will go through state level courts
and that both decisions are on hold until the courts weigh in.
And this gets worked out through the legal system.
But listen to what Colorado secretary of state said yesterday.
When asked about the urgency of this of this situation
and the need for the courts to weigh in and weigh in quickly.
I certify the names onto the ballot
for the presidential primary this Friday.
And so we do hope that the court understands that presidential primaries
are rapidly approaching and gives us a definitive answer
whether or not the former president is disqualified from the ballot
So with so much uncertainty, states asking the Supreme Court
to provide some clarity, we have to wait and see if they ultimately take up
this issue, though it is unprecedented.
Call and thank you.
And joining us now, former Trump attorney Tim parliamentary time.
We appreciate your time this morning.
On the Colorado case, specifically with the appeal is expected
as soon as this morning to the Supreme Court.
When you think through the defense is that the Trump team would put
into that appeal. What do you think is their most effective at this point?
I think really the most effective
is that the state courts don't have the power to enforce this.
You know, the 14th Amendment specifically does have a clause
that Congress shall have the power to enforce.
And Congress has
exercised that power in multiple ways.
They passed a statute 18 U.S.C.
23 83, which is they actually expanded,
you know, the reach of the insurrectionist ban beyond just,
you know, the previously elected officials to basically anybody
that would be barred from holding office.
But that has to be done through a judicial proceeding in federal court
And Congress has also acted through impeaching.
They impeach Donald Trump for insurrection.
And he was acquitted there.
So this this case is in some ways already been litigated
using the provisions of the 14th Amendment,
Section five provided.
Can I ask you about the impeachment point?
Because I was struck
over the course of the last couple of days that there has been some signals
that the Trump team is going to utilize that maybe not just for Colorado,
but also for the Jack Smith indictment as well.
On election subversion.
I guess my question is,
I was sitting in the Senate chamber listening to Senate
Leader Mitch McConnell
talk about how the legal process this doesn't do anything to change
the legal process that's going to come ahead.
This isn't the sit it's not going to act on this.
But by all means, the courts still can.
And he wasn't the only Republican to say that.
Were they wrong?
So my
personal belief on this is that while the impeachment
does control as regards to the 14th Amendment litigation,
it does not invoke double jeopardy as to criminal litigation.
And so I don't think that that is going to be necessarily a winning argument
of a double jeopardy to bar the January six prosecution.
But I do think that it is going to be effective
related to the 14th Amendment cases.
It's an important point, particularly as we await the appeal on that
federal election subversion case.
The special counsel push back on Trump's claim
that he should have absolute immunity from criminal prosecution
if part of the argument was it threatens to license
presidents to commit crimes to remain an offense in office.
I guess the question here right now is there's not a lot of precedent here,
which is you could say that about a lot of things that are happening right now.
Are we in uncharted territory or is there an argument here that they can
Trump's team can actually pull on to make their point
Yeah, it's definitely uncharted territory.
I think that there
you know, the idea of a blanket immunity is a little bit too broad.
And I don't see the courts buying that now
a more limited, you know, very targeted immunity for certain acts,
you know, that I do see as being something that could win.
But that's not something that really can be litigated at this stage.
You know, they would have to take this case
to trial and show during the trial that what he was doing
was within the scope of his duties as the chief executive.
And I expect that that will be one of the things that they, you know,
can and should present to the jury is that, you know, he was acting
based on the information, you know, that he had, that he reasonably believed that
there would be fraud and that, as you know, the chief executive charged
with ensuring that the laws of the United States are followed,
that he was pushing for investigations.
And if they make that argument credibly,
then I think that immunity could apply at that stage, but not here.
And it seems like they're on the path to making that argument.
Whether it's credible or not, it is still to be determined.
But in that defense itself,
when there's a list of dozens of people who have made very clear,
they told the president
explicitly there was no fraud or that his theories were inaccurate.
Some have said that they felt like
he acknowledged that was the case at various points.
Doesn't that undercut that point?
Sure.
And that's why it's something that really does have to go to a jury.
And it's the last point that you raised there about whether he acknowledged it.
That's going to be key
and so that's when you have disputed issues of fact like that.
It's not something that can be decided
by a judge in a motion stage of something that must be presented to a jury.
Because the juries are the arbiters of fact
is a very busy day ahead and a very busy year ahead.
Tomorrow, a story we appreciate your time, as always. Thank you.