Glen Kirschner

did not disavow or undercut the fact that he is indeed an insurrectionist. I mean, I think we have to lean forward as far as we possibly can tactically without falling flat on our face and breaking our nose in order to find ways to fight the righteous battle.

But I have to agree with you that in the event any of this ultimately goes back to the Supreme Court, whether they deem this a political question, justiciable or not, let's assume it goes back to the Supreme Court after January 6th. What do we think the Supreme Court is going to do? They're going to say, well, just like we told you back in March. You need implementing legislation from Congress.

You don't have it. So if we told you once, we're now telling you twice. So I understand this is somewhere between an extraordinarily difficult righteous mission and a suicide mission. And these are difficult calls. Again, if it were my oath on the line,

I would have a hard time being part of the process that declined to object to an insurrectionist governing the American people for the next four years. That's just my personal take.

Yeah, and listen, we didn't even get to talk about one of the most horrific examples of them really ignoring the plain text of the Constitution, Trump versus United States, the presidential immunity case. I think what they did there, granting a president

an enormously broad swath of immunity to commit crimes against the American people, including crimes designed to try to unlawfully retain the power of the presidency. What they did there, and I'm going to quote somebody who is so much smarter than me, Yale Law Professor Akhil Reed Amar, constitutional scholar. He said, and I can pretty much quote it verbatim,

They ruled that the Constitution itself is unconstitutional. In my view, Ben, they have been abusing their discretion by torturing or ignoring or twisting or overriding the express language of the Constitution in any number of ways. And one of the very difficult questions to answer is, what can we do? What should we do when the Supreme Court abuses its discretion?

And I don't know if we're going to end, but I'm always looking for a little bit of optimism and a point of light. But listen, the Supreme Court gets stuff wrong. Look at Plessy versus Ferguson, right? The horrific separate but equal government sanctioned, government sponsored racial segregation. That was 1896. They decided it.

It took 58 years to make it right with Brown versus Board of Education, which kind of finally put a nail in the coffin of Plessy versus Ferguson.

Listen, there's nothing that says we can't try to get back up to the Supreme Court on this extraordinarily important issue, whether an adjudicated insurrectionist and somebody who was impeached for incitement of insurrection should be allowed to govern, again, contrary to the express language of Section 3 of the 14th Amendment. So

If there's a vehicle to get that back up to the Supreme Court, I don't know that there is in the near term. It is something we should also be pushing and exploring.

Yeah, great to be with you, Ben. Keep up the good fight, the pro-democracy fight, the pro-rule of law, the pro-constitution fight, because it sounds trite, but we are all in this together, and that's the only way we're going to win it, is together.

Yeah, Ben, I mean, it wasn't even an opinion you were offering. You were quoting right from the Supreme Court majority opinion, the 5-4. It wasn't really 9-0 on the question that we are discussing, namely, does Congress have to legislate in order to implement the disqualification clause? So it's my view that the Supreme Court got it wrong and uninformed. Why do I say wrong and uninformed?

Because there's a bedrock principle in particularly appellate law. I argued criminal appeals in front of military appellate courts, in front of federal appellate courts, and in front of state and local appellate courts. There's a bedrock principle. You only saw the legal wood in front of you.

You decide the issue that has been briefed by the parties, that has been argued in oral argument, and you don't begin to ruminate about things that the parties, the people who have the interest in the litigation, didn't have a chance to brief, to argue, to think about. And yet the Supreme Court said, first,

sawing the legal wood in front of them, they said, we don't think the state of Colorado or any state, even after adjudicating Donald Trump an insurrectionist, we don't think that means a state has the authority to leave that person's name off a presidential primary ballot. And I don't know, maybe we part ways here, Ben, but I actually don't quibble with that. Why?

Because Section 3 of the 14th Amendment doesn't say if you take an oath of allegiance to the Constitution and thereafter engage in insurrection, your name may not appear on a state primary ballot. That's not what it says. It says you shall not hold office. You are disqualified.

And the only way the disqualification, the disability can be removed is if Congress votes two thirds in both houses to remove the disability. That's what it says. I mean, look, I went to public schools in Jersey, but I have enough reading comprehension to understand what it says and what it doesn't say. That's where the Supreme Court should have stopped. But instead, they started ruminating.

We often refer to Supreme Court precedent as the law of the land. This really feels more like the dicta of the land. And as I know your viewers know, dicta is like judicial ruminating and a thought experiment and answering questions that were not necessary to resolve the case. And even more importantly, had not been briefed and argued by the party.

uninformed opinions and rulings by the Supreme Court. But there's no getting around what they said, right? Well, let me back up. We have been trying to get around what they said, but I haven't seen a compelling argument for how we get around the fact that those five justices said, no, our interpretation of the Constitution means Congress has to legislate, implementing legislation to give effect

to what is otherwise the plain language of Section 3's disqualification clause. Again, I don't agree with it. It doesn't make any sense. It wasn't litigated. It's not an informed... or ruling, but it's right there in the Supreme Court case of Trump versus Anderson.

Now, there have been lots of creative arguments about how maybe there is a chance to get around what five Supreme Court justices said is required, but I haven't heard one that will yet win the day i mean we can fall back to the discussion of whether some of these um you know magic bullets or escape hatches should be tried what is the wisdom of trying them for example having

congressmen object to the electoral votes for Donald Trump because he is an adjudicated insurrectionist, but we both know that would contradict what the Supreme Court said can be used as a basis to disqualify someone. But if they do it, does it bubble back up to the Supreme Court? Do we try to force the Supreme Court to revisit its ruling slash dicta? I've heard it argued as both things.

I don't know. These are things we can discuss. But if we take a step back, Ben, it is so This is such a bitter pill for folks like us who are rule of law people. And we are constitution allegiant people. I took the oath of office multiple times as an army officer, as an army judge advocate general.

And I also took it when I left the army and became a federal prosecutor at the Department of Justice. I take my obligation to the Constitution deadly seriously. I'm retired from DOJ now, but I feel like I still am loyal to the Constitution all day, every day in the analysis that I do.

So I'll tell you, if I'm a member of Congress and I read Section 3 of the 14th Amendment and then I am asked whether I object,

to donald trump an adjudicated insurrectionist being sworn in being our next president boy there's a conflict there in my loyalties am i loyal to the ruling slash dicta in the supreme court do i remain loyal to my oath in the constitution and object to an insurrectionist being installed as president you know all of this ben i think for me highlights

why the Supreme Court should not have reached the question of the need for legislation to implement the disqualification. Because had the parties had an opportunity to brief and argue it, you know what they might have said? They might have taken the position, well, you know what, justices? There was an impeachment hearing for Donald Trump's incitement of insurrection.

That was the sole article of impeachment. And the House of Representatives voted by a significant majority, 232 to 197, that yes, Donald Trump, should be declared someone who incited an insurrection. And they forwarded that article of impeachment to the Senate for a removal trial. And then a healthy bipartisan majority of the senators voted him guilty.

That's a layman's term that I'm using in this setting. They voted that, yes, indeed, he did engage in incitement of insurrection. Of course, as we all know, they couldn't get to the two thirds, the 67 senators needed. Why couldn't the parties be given an opportunity to go in and argue to the Supreme Court? Ladies and gentlemen, Congress voted that he incited insurrection.

Both houses, no, not by two thirds, that's to remove the disability once you have been deemed to have engaged in insurrection. But all of this, Ben, is sort of a thought experiment, right? This is an academic discussion because the Supreme Court said you need legislation. And I so strongly disagree with that.

It feels more like dicta because it wasn't briefed and it wasn't argued and it wasn't necessary to resolve the issue that was presented to the Supreme Court in Trump versus Anderson. I'm sorry for running on for so long.

Yeah. So sadly, I agree with the proposition that five justices decided an issue that was not presented to them and that they had no right to decide. But they decided at five of them and they announced congressional legislation is necessary. I couldn't disagree with that more strongly, but it is what they said.

Yeah, so I'm going to kind of back into an answer to your question. So for 30 years, I was a trial court prosecutor. I was never really a muckety-muck at the DOJ, that I wasn't interested in it. And some might say I wasn't well equipped to be a muckety-muck.

But I always preach to our prosecutors, the ones that I supervised when I was chief of homicide at the DC US Attorney's Office, there is no shame

in taking a difficult but righteous case to trial and losing there is nothing but shame in declining to take a difficult righteous case to trial for fear of losing now i think when we talk about that ill article um and we talk about whether members of congress should object to the electoral votes that were cast for Donald Trump because he is an adjudicated insurrectionist.

You know, I have never jumped to the end likely result. Well, it's probably not going to work. My inclination is almost always fight the good, righteous, honorable fight, even if there is a substantial chance of losing. However, I wouldn't want that to militate in favor of fighting suicide missions because then everybody ends up worse off.

And I think we're right on that line because you rightfully say, you know, at the end of the day, it's likely to just hand Donald Trump another win. That to me is not right.

enough of a reason not to fight the good righteous fight to try to protect the american people from being governed indeed ruled if donald trump has his way by an adjudicated insurrectionist and somebody who was impeached and voted guilty in the senate of inciting an insurrection somebody who both the colorado supreme court ruled was an insurrectionist and the united states supreme court