After initially celebrating the Colorado Supreme Court’s legally dubious ruling to take former President Trump off the ballot as “a historic level of accountability for January 6th” during Wednesday’s CNN This morning, the network decided to bring on a lucid legal mind during The Lead in former U.S. Attorney General Bill Barr, who smacked down their hype by calling the ruling a “denial of due process.”
Asked for his initial reaction by host Jake Tapper, Barr noted that he didn’t support Trump for the GOP nomination but understood that Colorado’s “case is legally wrong and untenable.” He denounced what they did as “stretching the law” and the “hyper-aggressive positions to try to knock Trump out of the race are counterproductive.”
Of course, Tapper decided to read a long-winded excerpt from the ruling where the liberal justices suggested Trump was guilty of an insurrection (Click “expand”):
And this is what they said: “Trump acted with the specific intent to incite political violence and directed at the Capitol with the purpose of disrupting the electoral certification. When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification.
The court finds that the language Trump used throughout January 6th, 2021 was likely to incite imminent violence. And therefore, that petitioners have established that Trump engaged in an insurrection on January 6th, 2021 through incitement, and that the First Amendment does not protect Trump's speech.”
“Beyond the decision by the Colorado Supreme Court, do you disagree with any of that?” he pressed Barr.
Barr said he disagreed “with the court's ability to make those findings” because of “the core problem” that the court engaged in a “denial of due process” for Trump.
“And this was denied due process,” he proclaimed, proceeding to break down how the Colorado Supreme Court steamrolled its ruling. “It was a five-day hearing. There was no jury, it was before the judge. They were not able to subpoena witnesses and compel the attendance of witnesses. They relied on the hearings, the January 6 Committee hearings, which is mostly hearsay. There was no right to cross-examine during those hearings and so forth.”
The A.G. did find common ground with the “master” dissent from “three Democratic justices” who denounced the process as a “procedural Frankenstein.”
Tapper seemed intent to get Barr on the record suggesting that while he disagreed with the process, Trump was an insurrectionist. Barr didn’t bite, instead, he warned of the dangers of states applying the 14th Amendment “willy-nilly” (Click “expand”):
BARR: Yeah, important -- legally, the real -- denial of due process is fatal here. But as you've alluded to in your opening comments, the 14th Amendment is not something that can be applied willy-nilly by the states through sort of ad hoc proceedings. It was contemplated that the federal government set up the enforcement mechanism. So, you have some standard, you know. What is the proof that's required? What's the procedure that is required? And hopefully, some adumbration of what exactly the insurrection is.
Now, we're going to have those issues addressed.
TAPPER: Yeah.
BARR: He hasn't charged -- Jack Smith has not charged the president. The federal investigation has not charged President Trump with insurrection or incitement. And -- but that's a trial that's going to take place with due process and it's going to get into all these issues.
What was his state of mind? What were his actions?
TAPPER: Right.
BARR: That is the kind of proceeding where these things could be established.
“Put principle aside, the practical consequences of this rule would be chaos,” he cautioned. “[I]t’s sort of mushy exactly what’s an insurrection? What does engagement mean? Now, every state is going to make their own rules on this? You know, set up their own procedures? You know, is the proof going to be beyond reasonable doubt? Preponderance of the evidence, clear and convincing substantial evidence? Everyone does a different thing. It knocks people -- knocks the national candidates off ballots. It would be chaos.”
An easy-to-understand parallel would be to look at how states were not allowed to make term limit laws for their national-level representatives and senators because those were federal positions. Essentially, the argument Barr appeared to be making was that knocking a candidate off the ballot for a national-level position required a federal case, which Colorado’s certainly was not.
The transcript is below. Click "expand" to read:
CNN’s The Lead
December 20, 2023
4:04:46 p.m. Eastern(…)
TAPPER: What's your initial reaction?
BARR: Well, as you know, I strongly oppose Donald Trump for the Republican nomination. But I think that this case is legally wrong and untenable. And I think this kind of action of stretching the law, taking these hyper-aggressive positions to try to knock Trump out of the race are counterproductive. They backfire.
As you know, he feeds on grievance, just like a fire feeds on oxygen. And this is going to end up as a grievance that helps him.
TAPPER: So, the Colorado Supreme Court made its ruling based, in part, on the district court in Denver. And the district court found that Trump did engage in insurrection.
And this is what they said: “Trump acted with the specific intent to incite political violence and directed at the Capitol with the purpose of disrupting the electoral certification. When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification.
The court finds that the language Trump used throughout January 6th, 2021 was likely to incite imminent violence. And therefore, that petitioners have established that Trump engaged in an insurrection on January 6th, 2021 through incitement, and that the First Amendment does not protect Trump's speech.”
Beyond the decision by the Colorado Supreme Court, do you disagree with any of that?
BARR: I disagree with the court's ability to make those findings. The core problem here is the denial of due process, to deprive somebody of the right to hold public office requires due process. It requires an adjudication of two core issues. One, was with their insurrection. Did the public disturbance rise to the level of an insurrection? And second, what was the role of the individual there? Was it engagement? Did they do something to break their oath of office?
Those are -- those are complicated facts. And this was denied due process. It was a five-day hearing. There was no jury, it was before the judge. They were not able to subpoena witnesses and compel the attendance of witnesses. They relied on the hearings, the January 6 Committee hearings, which is mostly hearsay. There was no right to cross examine during those hearings and so forth.
So, all -- as the dissent said – And by the way, the three Democratic justices who dissented, their opinions, I think, are masterful. And as they pointed out, they said the process here was a procedural Frankenstein.
TAPPER: So, I'm sure that if your friend Liz Cheney were here, she would say that the January 6th hearings were not mostly hearsay. It was mostly witness testimony. But beyond that – Well, let me ask you first -- first of all, let me just ask you, as a D.C. legal hand, how do you think the U.S. Supreme Court is going to go with this? You think they're going to take it up and rule against it? What's your best guess?
BARR: Well, I think if they take it up, they're going to slap it down very quickly, and I hope they do take it up quickly and slapped down, because otherwise, he could be left off the ballot in this primary.
TAPPER: So, if I'm hearing you correctly, you're not even saying that you disagree necessarily with what the district court in the Colorado Supreme Court founded in terms of insurrection. You just think it's the wrong process. You think, for instance, Jack Smith's trial, although he's not actually charged the president with insurrection.
BARR: Yeah, important -- legally, the real -- denial of due process is fatal here. But as you've alluded to in your opening comments, the 14th Amendment is not something that can be applied willy-nilly by the states through sort of ad hoc proceedings. It was contemplated that the federal government set up the enforcement mechanism. So, you have some standard, you know. What is the proof that's required? What's the procedure that is required? And hopefully, some adumbration of what exactly the insurrection is.
Now, we're going to have those issues addressed.
TAPPER: Yeah.
BARR: He hasn't charged -- Jack Smith has not charged the president. The federal investigation has not charged President Trump with insurrection or incitement. And -- but that's a trial that's going to take place with due process and it's going to get into all these issues.
What was his state of mind? What were his actions?
TAPPER: Right.
BARR: That is the kind of proceeding where these things could be established.
TAPPER: Would Jack Smith's case be relevant to a 14th Amendment challenge? In other words, even though Trump has not been charged with insurrection or inciting an insurrection in that case, if Trump were to be found guilty and that's -- who knows what's going to happen? But if that were to happen, would that be grounds for a 14th Amendment challenge in the state do you think?
BARR: I'm sure it could prompt that. But my own view of it is that the federal government -- the mechanism that's in place is charging him with insurrection or rebellion.
And there's -- and Congress did pass that after the 14th Amendment. Congress passed two laws that were meant to implement it. One was the ability to remove someone from office. And that was passed in 1870, and it was done away with in 1948. And the other was making it a crime to breach your -- to breach your oath and then hold another office. So, to engage in rebellion and insurrection, and I think that's what would be required at this stage.
TAPPER: Do you think there is a case to be made to charge Donald Trump with insurrection or inciting an insurrection?
BARR: I haven't seen the evidence that I think would support that charge. But I think it would be interesting to let the January 6th case go forward and see what the evidence is.
TAPPER: David -- let's talk about the politics of this for one second, because again, you have been out there saying you don't want Donald Trump to be the nominee. You think there are better Republicans that could take the party forward. You are conservative long-established Republican in town.
David Frum wrote a new article in The Atlantic. It's entitled: “The Colorado Supreme Court just gave Republicans a chance to save themselves.” And Frum wrote, quote, “For those Republicans, here's your chance. The Colorado court has just granted you what should be your fondest wish, a clear path to the Republican nomination for a post-Trump candidate. Chris Christie, Nikki Haley even Ron DeSantis would all be more constitutional presidents than Donald Trump -- and Haley especially would likely prove herself more compelling candidate.”
What do you think of that?
BARR: That doesn't justify not following the law. I mean, the rule of law has to be adhered to here, and due process is fundamental. And second, the practical consequence -- put principle aside, the practical consequences of this rule would be chaos. Where you would have, essentially no standard, as you pointed out, it’s sort of mushy exactly what’s an insurrection? What does engagement mean? Now, every state is going to make their own rules on this? You know, set up their own procedures? You know, is the proof going to be beyond reasonable doubt? Preponderance of the evidence, clear and convincing substantial evidence? Everyone does a different thing. It knocks people -- knocks the national candidates off ballots --
TAPPER: Yeah.
BARR: It would be chaos.
TAPPER: So one of the rulings was that before it got to the Colorado Supreme Court, was that Donald Trump did engage in an insurrection but he is not actually covered in the 14th Amendment. The trial judge in that case ruled it applies to officers of the U.S. -- but that officers does not include the president of the United States. Do you think that was legally correct?
BARR: Actually, that's a close question in my view. But I think it sort of subordinate, because these other issues really dictate the result. But it's actually a close question.
(…)
