Neal Katyal, former acting U.S. Solicitor General in the Obama administration — and now frequent pro-Democratic MSNBC guest – was the dubious partisan choice of Wednesday evening’s PBS NewsHour as its sole expert opinion-giver on the controversial ruling by the Democratic-majority of the Colorado Supreme Court to remove Donald Trump from the presidential ballot in 2024, under the U.S. Constitution’s 14th Amendment, the so-called insurrection clause.
He’s not even eligible to be a “write-in” candidate. Who is “anti-democracy” again, denying voters their choice of candidate?
Bennett ran through some dissenting voices, including Trump’s Republican rival Gov. Ron DeSantis, who pointed out “There was no trial on any of this,” before landing on the segment’s guest expert, whose Obama administration service was left unmentioned. He was a solicitor general, but under which president?
Katyal agreed with the Democrat-nominated justices in Colorado, while casually admitting he’d “prefer to beat Trump at the ballot box,” but denying him a place on the ballot was good too.
He skipped over the bald fact that Trump has not been convicted of actual insurrection, however defined. Katyal sounded confident the Supreme Court would uphold Colorado’s Supreme Court ruling.
7:09:14 p.m. (ET)
Geoff Bennett: It’s an historic court decision that could have a major impact on the 2024 race for the White House.
A divided Colorado Supreme Court has ruled that Donald Trump is ineligible to serve as president under the Constitution’s insurrection clause. And it barred him from that state’s primary ballot. The ruling sets up a likely showdown at the U.S. Supreme Court.
The ruling by the Colorado Supreme Court was the first to say that Donald Trump’s efforts to overturn Joe Biden’s 2020 election victory disqualify him from running again under a post-Civil War era provision of the Constitution that bans insurrectionists from holding public office.
The justices pointed to Mr. Trump’s own words in his speech at the U.S. Capitol on January 6.
Donald Trump, Former President of the United States (R) and Current U.S. Presidential Candidate: We fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.
Geoff Bennett: Attorney Eric Olson argued the case for Mr. Trump’s removal from the Colorado ballot.
Eric Olson: So I’m very proud to be a Coloradan and an American today, because this is what it means to have the rule of law, where you’re given a fair shake.
Geoff Bennett: Four of the court’s seven justices, all appointed by Democrats, upheld the finding that the January 6 assault on the U.S. Capitol was an insurrection, that Mr. Trump engaged in that insurrection, and that the 14th Amendment’s ban on insurrectionists holding public office applies to the former president.
They wrote, “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 dissenting justices argue, “Absent a conviction, it’s up to the federal government, not the states, to determine who is an insurrectionist.”
Justice Carlos Samour wrote, “A patchwork of state rulings risk chaos,” concluding: “This can’t possibly be the outcome the framers intended.”
Republican reaction from the campaign trail was swift.
Fmr. Gov. Chris Christie (R-NJ), Presidential Candidate: I do not believe Donald Trump should be prevented from being president of the United States by any court. I think he should be prevented from being president of the United States by the voters of this country.
Gov. Ron DeSantis (R-FL), Presidential Candidate: There was no trial on any of this. They basically just said, what, you can’t be on the ballot? Could we just say that Biden can’t be on the ballot because he let in eight million illegals?
Geoff Bennett: The ruling in Colorado stands in contrast to challenges to Mr. Trump’s eligibility elsewhere. Courts in Arizona, Michigan, Minnesota, New Hampshire, Rhode Island, and Florida found in the former president’s favor, as cases in other states are still playing out.
The Colorado ruling will be placed on hold until January 4, pending Mr. Trump’s appeal to the U.S. Supreme Court, which could settle the matter for the entire country.
To discuss the ruling, we’re joined now by constitutional law expert and former acting U.S. Solicitor General Neal Katyal.
Neal, welcome back to the program.
So the Colorado Supreme Court ruled that, under the Constitution’s Insurrection Clause, Donald Trump has forfeited his right to run for president again. In your estimation, did that court get it right?
Neal Katyal, Former Acting U.S. Solicitor General: I think the court did get it right.
I mean, it’s obvious a momentous holding. It’s a very solemn day. In many ways, it’s a horrible day, because we shouldn’t really be here in a situation in which the courts have to come in and say someone is disqualified for, of all things, being an insurrectionist.
But that is, after all, what the 14th Amendment to our Constitution added in 1868 says. And people like me kind of would much prefer to beat Trump at the ballot box. But our founders did have this absolute constitutional requirement that you can’t be an insurrectionist, just like you have to be 35 years old and a natural-born citizen.
Geoff Bennett: When this question came before the Minnesota Supreme Court in November, the chief justice there raised the concern that there would be chaos, that some states keep Trump off the ballot, while others allow him on.
And she asked the question, should we do it even if we could do it?
How do you see it?
Neal Katyal: Well, that would be a good argument, I think, in 1868 to maybe say the 14th Amendment shouldn’t say what it says. But the truth is, it does.
And I don’t think these kinds of policy concerns should really inform ultimately what is a constitutional question. I think, at this point, Donald Trump had his chance in Colorado to try and say he wasn’t an insurrectionist. He lost that.
And given that finding by the Colorado trial judge and Trump’s own attempts to try and delay any sort of criminal adjudication into the question, I think the finding that the Colorado Supreme Court made yesterday is right.
Geoff Bennett: And the Colorado Supreme Court, as we reported, they delayed this ruling taking effect, so that Donald Trump can appeal to the U.S. Supreme Court, which is seen as the inevitable arbiter as to whether the 14th Amendment applies to him.
How quickly will the court take this up?
Neal Katyal: I think the court can act very quickly. I mean, in Bush v. Gore, which I was involved in, it was about 36 days start to finish. I think the court here can act on a similar timetable.
Right now, they actually are in their winter recess, with about six weeks off with no oral arguments at all. So I think they can be ready to go.
Geoff Bennett: Is there anything in the dissenting opinions from the Colorado Supreme Court that would be of interest to the conservative majority on the U.S. Supreme Court?
Neal Katyal: Most of it is not actually of interest, Geoff. Most of it’s about Colorado state law and what it means. And they disagreed with the majority that you could go into Colorado court and make this kind of action.
But when it goes to the United States Supreme Court, that court can’t second-guess Colorado Supreme Court’s decision about matters of Colorado law. So you only have some of the arguments Trump was making, which weren’t persuasive to the Colorado Supreme Court, available in the U.S. Supreme Court, the argument that he’s not an officer of the United States, which is just texturally absolutely wrong, or that he hasn’t been adjudicated in a criminal case guilty of insurrection, which I think is also wrong.
I mean, this is a Supreme Court, Geoff, composed of strict constructionists, people who look at the text of the Constitution, and the text of the Constitution is as clear as day. Insurrectionists can’t hold office, and presidents are officers, and that the text of the Constitution basically just says this is an ironclad requirement, and it’s got to be enforced.
Geoff Bennett: Well, a question about that, because Donald Trump’s political fate now rests with the court that he helped shape. Is success for him guaranteed, given that three of the justices on the court right now are justices that he appointed and helped shift that court to the right?
Neal Katyal: Oh, I think that’s absolutely the wrong way to look at this.
I mean, first of all, historically, the United States Supreme Court is often, in these situations — Richard Nixon’s case about executive privilege had three of his own appointees on it, but it was an 8-0 decision against Richard Nixon, which ultimately led to his impeachment.
With Donald Trump, this is the court that rejected in 2020 time and time again Donald Trump coming before the court to try and say there was election fraud and the like. It’s the court that rejected his executive privilege claims and sided with the January 6 Committee 8-1 in the decision last year, and it’s a court that in Moore v. Harper case that I argued about the Republican independent state legislature theory threw that out on a 6-3 vote as well, despite people like John Eastman pushing that theory.
So this is a court that is very much capable of doing the right thing. And here, when the text of the Constitution is so clear and doesn’t have anything like, oh, you got to be convicted in order to be subject to the 14th Amendment, I think it’s a very hard case for Donald Trump’s lawyers.
Geoff Bennett: Neal Katyal, always appreciate your insights.
Neal Katyal: Thank you.