OPINION: This article may contain commentary which reflects the author's opinion.
Elie Honig, a senior legal analyst at CNN and former federal prosecutor, expressed disapproval of the Colorado Supreme Court’s ruling from December, describing it as an attempt to fit a square peg into a round hole.
During a segment on CNN, Honig further contended that the ruling infringes upon the due process rights of former President Donald Trump.
While examining the Colorado Supreme Court’s ruling to prohibit Trump from appearing on the state’s ballot, Honig stated: “I think the Supreme Court is going to take this case and I think the Supreme Court is going to reverse the Colorado Supreme Court.”
“I halfway agree with Bob, I halfway disagree with Bob. I disagree with him on whether the term “an officer of the United States” includes the president. There’s sort of linguistic exercises you can do either way, but I think it’s worth noting all seven justices didn’t have a problem with all officers of the United States including the president. And also just logically, if you’re gonna have a provision in the Constitution that says anyone who engages in insurrection can’t serve for future office, it would be bizarre if the highest office was exempt from that,” Honig continued.
He added, however, “I do agree with Bob that we have a serious due process problem here because the 14th Amendment itself says that Congress — in Section 5 — Congress has to pass laws that tell us how this works, who gets to decide who engaged in insurrection. Is it a court? Is it Congress? Is it a jury? Is it a judge?”
Honig noted, “The only law that’s still on the books, as Bob said, that Congress has ever passed is the criminal law, criminalizing insurrection, which specifically says if a person is charged and convicted with this, he’s disqualified. That has not happened here.”
He concluded, “Instead, Colorado tried to sort of take this state-level proceeding that’s not really made for this type of insurrection determination and force a square peg into a round hole, and I think that violates Donald Trump’s due process rights, and I think the U.S. Supreme Court’s gonna reverse because of that.”
WATCH:
Constitutional law professor and expert Jonathan Turley expressed shock and dismay at the Colorado Supreme Court’s decision to boot Trump off the 2024 ballot under a 14th Amendment provision regarding “insurrection.”
Back in late December, Colorado’s highest court determined that Trump was an ineligible presidential candidate because of the 14th Amendment’s “insurrectionist ban.” The verdict was 4–3.
The decision will remain on hold until January 4th, when an appeal is considered. The nation hopes that the US Supreme Court will hear the case and reach a final decision by then.
The landmark decision will shake up the presidential race in 2024, even though it only applies to Colorado. Officials in Colorado’s election office have stated that a resolution is required by January 5, the statutory deadline for determining the Republican primary contenders.
Post-Civil War ratification of the 14th Amendment prohibits “engaged in insurrection” from holding public office for officials who pledge allegiance to the Constitution. Aside from its ambiguous language and lack of specific reference to the presidency, this provision has seen only two applications since 1919.
In an appearance on Fox News afterward, Turley told host Laura Ingraham that he vehemently disagreed with the ruling and the reasoning behind it while warning about its consequences.
“It is a strikingly anti-democratic holding, in my view,” Turley said. “The court literally faced a series of interpretive barriers to get to where it ended up. It adopted the most sweeping, broadest possible interpretation to get over every one of those hurdles. So throughout this opinion, it had to adopt interpretations that could encompass a wide array of statements.”
“They used what’s called true threat precedent to show that you can view what Trump said as encouraging an insurrection by looking at stuff that he said at other times. And that, of course, allowed them to reach this conclusion. In my opinion, the court is dead wrong,” He said before adding that other Democratic-appointed judges had previously rejected theories of a similar nature.
“I think the opinion is really chilling, and I think that the Supreme Court will make fast work of this theory; I hope it does,” Turley said.
“When you read this opinion, the one thing that keeps recurring in your mind is: ‘Where is the limiting principle here?’” Turley offered. “What would not satisfy this test? At each one of these barriers, the court could have adopted a fairly moderate or more narrow approach. But it didn’t. And so, on every one of these issues, it really took out all the fail-safes and went to the broadest possible meaning.
“Well, that means that states could engage in a tit-for-tat type of series of decisions. You know, you could have red states blocking Biden on some ballots and blue states blocking Trump,” he predicted. “And the way this is viewed by the public is really quite horrific. You know, they view President Biden on the ropes, and the ref just called the match.”
