Jay Sekulow, Chief Counsel for the American Center for Law and Justice, joins to discuss the 9-0 Supreme court decision. The U.S. Supreme Court sided unanimously with former President Trump in his challenge to the state of Colorado’s attempt to kick him off the 2024 primary ballot. Even the liberals were able to see how incredibly ridiculous these efforts were - only the American people have the right to decide on their President.See omnystudio.com/listener for privacy information.
If you want to be a part of the program, obviously focusing on the Supreme Court, unanimously overturning the Colorado ruling, throwing Donald Trump off the ballot.
Clearly, that will also impact states like Maine and Illinois.
And anyway, here to break it all down for us and his group, the ACLJ, the American Center for Law and Justice.
He's the chief counsel.
Jay Seculo has been up to his eyeballs in this case from the get-go.
Both of us predicted it would likely be a 9-0 decision, which is pretty rare, but in this case, certainly warranted.
Jay, welcome back.
Good to have you, sir.
How are you?
Great.
And I think it was very wise of the court to issue a get-a-decision that is unanimous.
It was 9-0, as you said.
And it filed, we represented the American Center for Law and Justice.
We represented the Colorado Republican Party in the case on the merits.
So we were involved in the entire trial process all the way up to the U.S. Supreme Court.
But I think if you just look at the beginning of the opinion where the court says because the Constitution makes Congress rather than the states responsible for enforcing Section 3 against federal office holders and candidates, we reverse.
And it basically said that the states had no business getting into this in the first place, that it was way outside the scope of their authority.
And all these liberal pundits that were saying, oh, no, this is the states could do this.
Even the three most liberal members of the court said it would wreak havoc.
In fact, there's a concurring opinion, Sean, by Justice Sotomayor and Justice Kagan and Justice Jackson.
This is what they said.
Today the court, and the court must decide whether Colorado may keep a presidential candidate off the ballot on the grounds that he's an oath-breaking insurrectionist.
And he said allowing Colorado to do so would, we agree, create a chaotic state-by-state patent work at odds with our nation's federalism principles.
That is enough to resolve the case.
They go on to say, and this is important, to allow Colorado to take a presidential candidate off the ballot under Section 3 would imperil the framers' vision of a federal government directly responsible to the people.
That's from the three most liberal members of the United States Supreme Court.
The three most liberal members of the Supreme Court of the United States.
And then Justice Barrett also filed a concurring opinion.
And she said, all nine justices agree on the outcome of this case.
That is the message Americans should take home.
I found it pretty interesting.
And you look at the concurring opinions, and I want to get into some of that with you because I think it's very revealing.
What did you make?
First of all, they say we conclude the states may disqualify persons holding, you know, we're talking about Article Amendment 14, the third Section 3.
You know, for reasons given responsibility for enforcing Section 3 against federal office holders and candidates rests with Congress and not the states.
It goes on.
Let's start there for a second because there's a lot there to unpack.
Well, look, here's what they were saying.
If this was, they argued some of the cases they cited were the cases where a state, Georgia, for instance, during Reconstruction, prohibited someone from going on the ballot, and they used the language of the 14th Amendment, Section 3, the state version of it, to keep that person off the state ballot.
And what the court said here was, well, that's fine for a state to do for a state election, but you can't do that for a federal election, especially involving the presidency, which, by the way, is exactly what we argued, including citing those cases to the Supreme Court.
So what they were careful to do was say, look, we're not saying states have no rights when it comes to state elections, but they have no right to interfere when it comes to federal elections, period.
And all nine justices said that's right.
Let me play a little of the arguments that did take place.
These arguments took place on February the 8th.
And I thought my interpretation was, although you've got to be very careful when listening to questions and arguments and then trying to draw conclusions about which direction maybe any individual justice is leaning, but it was pretty clear during oral arguments that the justices, all of them, were skeptical of the Colorado Supreme Court's rationale.
Let me play a little of that.
If Colorado's position is upheld, surely there will be disqualification proceedings on the other side.
I would expect that a goodly number of states will say, whoever the Democratic candidate is, you're off the ballot.
And others, for the Republican candidate, you're off the ballot.
And it'll come down to just a handful of states that are going to decide the presidential election.
That's a pretty daunting consequence.
What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice of letting the people decide?
Because your position has the effect of disenfranchising voters to a significant degree.
The question that you have to confront is why a single state should decide who gets to be president of the United States.
So the justices, this was one of those moments where the skepticism was so apparent that it became fairly obvious to me which way they were leaning.
Let me go back to this, the three liberal justices writing that they disagreed with the finding of the five conservative justices that a disqualification for insurrection can only occur when Congress enacts a particular kind of legislation pursuant to Section 5 of the 14th Amendment.
Now, explain what they were saying there.
So they're saying you didn't have to reach the issue of how the federal government would enforce the Section 3 of the 14th Amendment because we've all agreed, all nine of us agreed, the states have no authority to do it.
And that was the issue before.
So they said it was basically gratuitous for the court to say whether you use Section 5, whether it has to be a different kind of enabling legislation.
So they weren't saying, by the way, they disagreed.
They're just saying you didn't have to reach it.
Barrett says the same thing, by the way.
Justice Barrett says the same thing.
She agrees with the conclusion, but she said, we didn't have to go so far as to say how you best do it because the chances of this ever coming up against zero.
I tend to agree with you.
I don't think it's coming up anymore.
Well, let's go to Justice Barrett for a second here.
And in her concurring opinion, agreeing with the three liberals, the case didn't require the Supreme Court to rule that only congressional legislation could enforce the, quote, insurrection clause.
I do think it does need to be noted at this point before I go any further.
Do you know of any time that Donald Trump has ever even been charged with insurrection, let alone convicted of it?
Because that came up in the majority opinion.
In fact, how do you determine such?
Which I think it was Justice Kavanaugh that brought that up.
The reference to insurrection in the opinion is you never came up an oral argument, is that that's what Colorado said.
In other words, they said, well, that's what the Colorado court held, but they never addressed it on the merits.
What Justice Barrett is saying is this.
She said, look, I agree that the states lack the power to enforce Section 3 against the president or presidential candidate.
She said, that's enough to resolve the case.
We don't have to go any further.
It does not require us to address the complicated question of whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.
So in other words, could there be existing federal legislation?
Can there be congressional enactment?
Could there be congressional action of not seeing a president?
Those kind of things.
But she says the majority, you know, didn't have to go there, but they did.
But she also wrote this.
She said, particularly in these circumstances, writing on the court should turn the national temperature down, not up.
For present purposes, our differences are far less important than our unanimity.
All nine justices agree on the outcome of this case.
That is the message Americans should take home.
Which, by the way, should also eliminate this talking point of the left that the court's partisan, that it's institutionalized.
Republicans and Democratic appointees to the Supreme Court agreed Colorado was way out of place in what they did.
And in the middle of what you just quoted directly from her concurring opinion, she also added, in my judgment, this is not the time to amplify disagreement with stridency.
I mean, she was very clearly aware of the moment that we're living in.
You know, they said that the court settled the politically charged issue in the volatile season of a presidential election.
Those were pretty profound words to me, and I was surprised she put that in there.
Yeah, I think, look, she was cognizant of the national climate, which I don't think there's anything wrong with.
Remember, the court's going right from this case to another presidential case involving the former president, and that is the issue of presidential immunity from criminal prosecution.
Now, the president's lawyers call it absolute immunity, and I think that's kind of a misnomer.
It's really a limited presidential immunity that when the president's engaged in official acts, of course, he cannot be prosecuted for that.
And I think that's where the Supreme Court's going to end up there.
But look, these cases are up there, and this was the right decision.
And I think the fact that it was unanimous is excellent.
Let me ask you a little bit about the immunity case.
I had my doubts that the court would even go near this.
Although I felt it was the utmost important that they did take this upon them.
I know they have scheduled court arguments for, I think, late April.
We may not get a decision until sometime in late June.
And that would mean that if, quote, that D.C. trial were to move forward, Jay, that would be in the month of the Republican National Committee Convention.
There's no way that can happen.
Okay, you say that, but there's not anything specifically designed in terms of a timeframe.
I know historically.
Judge, there's a couple things here.
Look, this case is not going to be argued until April 22nd.
Now, could they come out with a decision, Sean, May 22nd?
Yeah, they could.
This was 30 days from argument, but not likely because they've not expedited it.
They didn't set it for a March argument.
So I think you're looking at it's a more complex case.
There's going to be a lot of different decisions.
So I think you're realistically looking at a late June, sometimes they go to the first week of July, but likely late June decision.
At which point, pretrial motions have to start.
That takes months.
Other people's calendars.
The New York case may be going on.
In August, the case involving the documents may be going on.
So I just don't see Jack Smith's case.
He overcharged.
And also, remember, there's a pending Supreme Court case.
It's not brought by President Trump, but it was brought by a January 6th individual who charged in a complaint that the statute, the interfering with Congress statute as interpreted by the district court, was overbroad.
Two justices at the D.C. Circuit said no, it wasn't, but one judge, Greg Cassis, very well-respected judge, said, yeah, it was interpreted overbroad.
That case is at the Supreme Court now, too.
That's two of the four charges against Trump.
Let's talk about the immunity case for a minute, if we can.
And what are the best arguments that you would make in that case?
I think the D.C. Circuit came up with three reversible errors.
First, the conclusion that presidential immunity expired at 1201 on January 20th when the former president became from being President Trump to Citizen Trump was wrong.
Nixon versus Fitzgerald, which is a civil immunity case, saying that you cannot be civilly sued for official acts taken while you're president, was targeting Richard Nixon.
It was well after he was out of office, and the court said it applied.
So, taking the Nixon versus Fitzgerald standard on presidential immunity, you would, number one, assert that it extends the expiration of the office.
That's number one.
Number two, this is a criminal case, so it's even more difficult.
It burdens the executive branch of government under Article II of the Constitution.
The president is uniquely the only branch of government which in and of himself is one person.
Congress, you know, you have members of the House and Senate.
Obviously, the courts, you have judges, justices, court of appeals, judges.
But the president is uniquely the only person that is uniquely a branch unto himself.
So the idea that you have to have lawyers sitting there while you're making official decisions is absurd.
So that's, I think, another basis upon which the court would be reversed.
And third is, there was no conclusions of findings of fact by the district court that what the president was engaged in at the time around the election, that those weren't official acts because I think the president would assert, I know he would assert, that concerns about election integrity and the way in which the election was conducted,
whether you agree with him or not, certainly were official acts because under the Constitution, there's the clause of the Constitution, which is called the execution clause, where the president will faithfully execute the laws of the United States.
So I think those are the three strong constitutional arguments.
I think it becomes a limited opinion.
They do not say it's absolutely immune from everything, unofficial acts included.
I think they're going to limit it to official acts, and then they'll send it back down to the district court to determine what those official acts were or were not.
Quick response to the case today and on the insurrection, I thought it was Kavanaugh, I believe, that brought up the issue of, well, how do you possibly define it?
Well, one way is somebody would have to be charged with it, wouldn't they?
And then certainly convicted before it would be legitimate, right?
Yeah, under Title 18, there's a statute.
The criminal code, there's an insurrection statute.
Noticely, Jack Smith did not use that.
That to me is fascinating in and of itself.
Anyway, you did an amazing job.
I know you represented the Republican Party out in Colorado.
The American Center for Law and Justice continues their great work, and we appreciate you sharing your insight into all of this.
I appreciate it.
800-941-Sean, our number, if you want to be a part of the program.
Now, we had President Trump earlier on the program today, but he also gave a statement to the media on the Supreme Court decision that we've been talking about, knocking down Colorado's ballot ban, how he thinks it'll help unify the country, and how a president has to have full immunity.
Talked about both cases.
Listen.
Today, you're going to send a big signal to the entire world that this is your country, and it's also Trump country.
We're going to work on this together.
We're going to make it so great.
We're going to make our country better than ever before.
And you're going to send a message straight to Crooked Joe Biden that we are coming like a freight train this November 5th.
With your vote, we are going to tell Crooked Joe Biden, Joe, you're fired.
You were a terrible president, and you are fired.
This is the most important election in American history under Crooked Joe.
Our country is being destroyed.
Our economy is being wrecked by Biden's inflation disaster.
Our borders are being overrun.
We're being invaded.
Our values are under attack.
The Supreme Court for its unanimous decision today.
It was a very important decision.
We're very well crafted.
And I think it will go a long way toward bringing our country together, which our country needs.
And they worked long, they worked hard, and frankly, they worked very quickly on something that will be spoken about 100 years from now and 200 years from now.
Extremely important.
Essentially, you cannot take somebody out of a race because an opponent would like to have it that way.
And it has nothing to do with the fact that it's the leading candidate, whether it was the leading candidate or a candidate that was well down on the totem pole.
You cannot take somebody out of a race.
The voters can take the person out of the race very quickly, but a court shouldn't be doing that.
And the Supreme Court saw that very well.
And I really do believe that will be a unifying factor.
All right, that was President Trump's immediate reaction to the 9-0 Supreme Court decision on trying to kick him off the ballot.
Not a surprise to me.
I think the immunity question is a little more difficult, but I think as equally, if not more important.
And we'll see what the court does.
They'll hear arguments, I believe, sometime in late April, and then at some point give a decision.
So we'll wait and watch and see.
That does not seem, they have not said that they are expediting that, but we'll watch for all of that.
Anyway, let's get to our busy phones here.
Let us say hi to George is in Miami, the free state of Florida.
George, how are you?
Glad you called, sir.
Good afternoon, Sean.
Thank you for letting me talk on your show.
I'm a retired law enforcement.
I lived here in Miami since the 1960s.
I have always been 100% supporter of a strong and secure border.
That even made me be more supportive in 2012 when my son Alan Martinez was the victim of an illegal alien from Mexico who had already been deported to Mexico and came back to the United States.
And he was involved in a car accident when this individual hit him head on in a highway in South Carolina.
My son, he was a graduate from Air Force in 2006.
And in 2012, he had just started his second year of law school at the University of South Carolina.
My heart is broken for you.
How old was your son?
My son, at the time of the accident, he was 32 years old.
He survived the accident with severe brain, traumatic brain injuries and other injuries that eventually five years later, as a result of the accident and his injuries, he passed away.
You know, I've been thinking a lot about Lake and Riley and her parents, and frankly, other parents.
You know, the federal government doesn't keep track of the crime statistics involving illegal immigrants.
And I guess the suspicious side of me is asking, why not?
Why wouldn't they keep track of that?
But those that, I guess, want open borders, they wouldn't want that information out there.
At some point, especially what we've been watching unfolding in the Biden years with open borders and aiding and abetting and facilitating lawbreaking, and when this type of thing happens, at what point do we put the blame where it belongs on those people whose policies is allowing and they're aiding and abetting in the process?
It's unreal to me.
And I can't imagine.
I don't know how parents recover from something like this.
How are you doing?
How many years ago was this?
Well, he passed in December 23rd, 2017.
There is not one day in my life that I don't think about my son.
There are days that I can't hold the tears back.
This individual was sentenced to 15 years of imprisonment, served about seven, and then he was released.
I'm assuming he was deported and went back to Mexico.
You don't even know if he was deported?
They didn't force his deportation even after that?
They had an immigration order on him.
So I'm assuming that actually they did that and he was sent back to Mexico.
As far as all these issues that we're having with the border, in 1980, we had in Miami the issue with the Muriel boat list where all these people came from Cuba.
Of course, not all of them.
Yeah, the Mira Boatlift, which we were very well aware.
And that was a lot of the criminals from Cuba.
We had a crime wave that followed.
Yeah, I remember it well.
I lived that.
I was a police officer in Miami back then.
And I predict, and hopefully, I hope that I am wrong, that eventually we are going to start seeing that in the whole entire United States, the same situation here with all a lot of these people that not only from South America, but from a lot of other countries that have come here and are going to start committing crimes.
I mean, I just think of people like you.
And you cannot bring your child back.
You can't.
The years that he suffered as a result of this.
And again, all of this is preventable.
I mean, at least we did have policies that were in place to address this, and we were able to reduce the number of illegal immigrants to the lowest numbers we'd ever had.
Now, I mean, you have people like Maorcas and Joe Biden.
Joe Biden rescinded all the policies that were working.
Then he lied to us for three years saying, no, the border is closed and the border's secure.
Everybody in his administration lied about it.
And, you know, as bad as it has been in the past, I mean, this is now the worst it's ever been.
And then factor in our top geopolitical foes.
Why are tens of thousands of people from China showing up at our southern border?
It's incredible.
It only takes a stroke of a pen for the president to sign an executive order to close the border.
And he's been lying to, he's destroying our country.
And anyway, Sean, thank you very much for letting me talk on your show.
And welcome to Florida.
I appreciate your kind words.
You're in my prayers praying for your son, praying for your family.
And I don't know where you go to get peace.
I really don't.
I can just imagine.
I can't put myself in your shoes, obviously, but when I try to, I don't think I would have the strength to recover.
I really don't.
And God bless you and your family, sir.
And I wish you all the best, okay?
Thank you, Sean.
Thank you very much.
Appreciate it.
Let's say hi to Glenn is in Massachusetts.
Glenn, how are you?
Glad you called.
Good afternoon, Sean.
Yes, there are some conservatives up here in Massachusetts, believe it or not.
There's not enough of you, and there's not a lot of you.
I can say that much.
And the question is, why are you still there paying those high taxes?
A long story that we can't get into here, but suffice it to say, we've got some pretty strong roots here at this point and don't want to leave a bunch of people that we really know and care about.
No, I completely understand that.
I do.
I understand it completely.
Okay, my question.
Nick, you had Bill O'Reilly on last week, and he mentioned that Nikki Haley's been raking in millions from liberal groups and anti-Trumpers.
Now, if she drops out, she's still going to control all that money.
So what do you think the chances are that she might team up with an RFK Jr., use all that money to run on the no labels ticket as the, quote, centrist young alternative to Trump and Biden?
Do you think they well?
I mean, she was asked a question over the weekend specifically about no labels, and she said that she had no intention, would never do that.
But however, simultaneously, she had previously pledged prior to the Republican primary debates that she would support whoever the eventual winner is, and she backed away from that promise this weekend.
So I'm not sure what to make of that.
I mean, is she somebody that's going to keep her word on this or not?
I mean, I don't have insight into her thinking on it.
I think that, especially again, this weekend, I don't think things went particularly well for her.
If she wants to herald the D.C. win, I guess she can.
But she's lost every state in pretty dramatic fashion.
I think it would have been a far better strategy for her if she really had presidential ambitions that continued that before she went into her home state and lost by 21 points after coming in third in Iowa and losing by double digits in New Hampshire and losing 2-1 in Nevada to none of the above.
I think she would have been better off waiting four years from now when it's going to be a Republican open primary.
That's my feeling.
I agree.
You know, nobody ever listens to my advice.
Why would anyone listen to me, right?
Yeah, true.
Okay.
Well, awesome.
Well, thank you very much for your insights.
I appreciate it.
All right, my friend.
Appreciate you being with us.
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All right, let's get back to our busy phones.
Robert in the state of Georgia.
Robert, how are you?
I know the whole state's been mourning Lake and Riley.
Our prayers are with that family for sure.
Yeah, mine are too, Sean.
And I don't even know what city.
Of course, I'm in Atlanta.
I don't know what city, what state, and certainly don't even know what country I live in anymore.
And if this illegal immigration issue is not enough to get people out to vote and support, you know, Donald Trump, I don't know what is, you know, especially on the heels of Lake and Riley's death.
And, you know, people, there's a real interesting distinction about her horrible, horrible death versus how other deaths happen, you know, at the at the hands of law enforcement in this country.
My concern is, is that we just don't process things right.
And if ever there was a time, and I'm not talking doing riots, but where people ought to be out, I was so appreciative for the guy that stood up in front of the mayor of Athens last week and called him out.
But people ought to be marching in the streets carrying signs saying enough is enough.
And we just are kind of like Patsys in some ways, a lot of us conservatives and Republicans.
And then yet something happens, you know, like with George Floyd or Raychard Brooks here in Atlanta, and cities get burned down for that, you know, for the anger that the people that supported them.
And those deaths were horrible deaths too, you know, unnecessary, perhaps.
But, you know, then something happens to like Lake and Riley, and there is love and support for her, and thank God for that.
But I'm telling you, this country, like your previous caller said, we are losing our country over this illegal immigration issue.
And Biden doesn't seem to care at all.
And just like your previous caller said, one stroke of a pen.
And we could go back to the policies that Trump implemented during his presidency.
And this is why I just say he has got to have the support to get this country back and shut that border down and get us some law and order back on the streets of our big cities and elsewhere in this country.
I mean, it's just, you know.
We better get a hold of law and order and safety and security.
We better get a hold of this illegal immigration problem.
And I think it is the biggest national security threat we're now facing, coming from top geopolitical foes.
I keep mentioning it.
But this is a clear and present danger to everybody.
I'm up on a clock here.
I've got to run, but I do appreciate your call, Ken Paxton, at the top of the hour.
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