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FACT. THE SUPREME COURT IS RUSHING TO GET AHEAD OF THE PRESIDENTIAL PRIMARY CALENDAR, AND THAT’S BECAUSE A GROUP OF REPUBLICAN AND UNAFFILIATED VOTERS IN COLORADO SAY FORMER PRESIDENT TRUMP CANNOT BE ON THE MARCH PRIMARY BALLOT. AT THE HEART OF THEIR CASE IS SECTION THREE OF THE 14TH AMENDMENT. IT WAS PUT IN PLACE AFTER THE CIVIL WAR, AND IT SAYS THAT ANYONE WHO’S TAKEN AN OATH TO THE CONSTITUTION AND THEN GONE ON TO ENGAGE IN INSURRECTION, AN CAN’T HOLD OFFICE IN EARLY 2022, KIM WHALEY WAS ONE OF THE FIRST PEOPLE TO NOTE THE 14TH AMENDMENT’S POTENTIAL IMPACT ON ANY FUTURE RUN BY FORMER PRESIDENT TRUMP. SHE’S A PROFESSOR AT THE UNIVERSITY OF BALTIMORE SCHOOL OF LAW, PROFESSOR WHALEY, SO NICE TO HAVE YOU IN STUDIO. THANK YOU FOR JOINING ME. THANK YOU FOR HAVING ME. WHY DON’T YOU START BY EXPLAINING REALLY WHAT’S AT ISSUE IN THIS COLORADO CASE? IT ALL COMES FROM SECTION THREE OF THE 14TH AMENDMENT, WHICH WAS PASSED AFTER THE CIVIL WAR TO ESSENTIALLY KEEP CONFEDERATES OUT OF THE ORGANIZED GOVERNMENT ON THE IDEA THAT IF YOU WANTED TO BREAK UP THE UNION, YOU’RE PROBABLY NOT THE BEST PEOPLE TO RECONSTRUCT THE NATIONAL GOVERNMENT. FAST FORWARD TO NOW. THE STATE OF COLORADO UNDER COLORADO LAW, DETERMINED THAT THAT DONALD TRUMP’S PARTICIPATION IN THE JANUARY 6TH INSURRECTION DISQUALIFIES HIM. UNDER COLORADO LAW FROM BEING ON THE BALLOT. BECAUSE COLORADO LAW IS INCLUDES THE CONSTITUTION AS PART OF ITS BASIC JOB DESCRIPTION, ITS REQUIREMENTS FOR BEING ON THE PRESIDENTIAL BALLOT IN COLORADO. SO ARE THERE OTHER STATES? IN ADDITION TO COLORADO THAT ARE STRUGGLING OR DEALING WITH THIS VERY ISSUE? YES. THERE ARE MANY STATES ACTUALLY ACROSS THE COUNTRY. MOST OF THE CASES OR MANY OF THE CASES HAVE RESOLVED. AND FOR VARIOUS REASONS, EVERY STATE DECIDES IT DIFFERENTLY. UNDER THEIR LAWS. AND THERE STILL ARE A NUMBER OF CASES PENDING IN STATES AS LARGE AS TEXAS THAT, IN THEORY, COULD HOLD IN A WAY CONSISTENT WITH COLORADO VO AND POTENTIALLY IMPACT WHAT HAPPENS IN NOVEMBER. SO NOW IT’S ALL ON THE STEPS OF THE SUPREME COURT. HOW WOULD YOU EXPECT THIS PARTICULAR COURT TO DECIDE? I DON’T THINK THE SUPREME COURT IS GOING TO DEAL WITH COLORADO LAW. I DO THINK THE SUPREME COURT’S MORE LIKELY TO GO HEAD ON INTO SECTION THREE ITSELF. SO THERE ARE A NUMBER OF QUESTIONS. WHAT IS AN INSURRECTION? AND WAS JANUARY 6TH AN INSURRECTION? I THINK THAT’S A STRONG CASE FOR COLORADO, FRANKLY, THAT JANUARY 6TH WAS AN INSURRECTION. BUT THAT’S NEVER BEEN DEFINED. IF IT’S AN INSURRECTION, DID DONALD TRUMP ENGAGE IN IT? HIS LAWYERS ARE ARGUING THAT SORT OF ENGAGING BEHIND THE SCENES DOESN’T QUALIFY. NUMBER THREE, UH, THE CONSTITUTION LISTS THE PEOPLE THAT CAN BE, UM, SORT OF IMPLICATED IN SECTION THREE. AND THE ARGUMENT IS THE PRESIDENT ISN’T SPECIFICALLY NAMED. I DON’T THINK THAT’S THE STRONGEST ARGUMENT, BUT THAT’S ONE THAT THE COURT COULD TAKE UP. THEN THE COURT COULD TAKE UP. THE QUESTION IS IT A REQUIREMENT THAT CONGRESS STEP IN AND GIVE US THAT BRIDGE BETWEEN A GETTING BEFORE A COURT AND THE CONSTITUTION ITSELF? THERE ARE PEOPLE WHO WHO IN ARGUING THE VIABILITY OF THIS, SAY, LISTEN, THIS WHOLE THING HASN’T EVEN BEEN LOOKED AT SINCE 150 YEARS HAVE PASSED. I MEAN, DON’T THEY HAVE A POINT? THE CONSTITUTION IS OLD. IT’S TERSE, AND WE HAVE JUDGES, JUSTICES, A MAJORITY WHO PURPORT TO PLAY PAY ATTENTION TO THE PLAIN LANGUAGE, WHO SAY, YOU KNOW, WE’RE JUST IN THERE TO READ WHAT THE TEXT IS. THE TEXT SAYS NOTHING ABOUT THE CIVIL WAR. IT SAYS INSURRECTION OR REBELLION OR AID OR COMFORT. IT CAPTURES, I THINK, SOMETHING OTHER THAN JUST THE CIVIL WAR, BECAUSE IF THEY WANTED TO LIMIT IT TO THE CIVIL WAR, THEY WOULD HAVE DONE THAT. AND SO MY RESPONSE TO THE POLITICAL ARGUMENTS ARE, IF PEOPLE REALLY THINK IT’S A DANGER TO DEMOCRACY, MAXEY THEN THE ANSWER HERE IS TO GET TOGETHER AND AMEND THE THE CONSTITUTION TO REPEAL IT. BUT THE ANSWER ISN’T TO GET OUT OF SHARPIE AND EFFECTIVELY CROSS IT OUT ON THE THEORY THAT WE JUST DON’T LIKE IT. THAT’S NOT GENERALLY HOW, UH, THE CONSTITUTION IS INTERPRETED. IF IN FACT, THE SUPREME COURT DOES SORT OF SAY, HEY, LET’S EFFECTIVELY JUST CROSS IT OUT, IT SEEMS TO ME THE BIGGER ISSUE IS NOT EVEN NECESSARILY FOR PRESIDENT TRUMP IN THIS DAY AND AGE. IT’S REALLY DOWN THE ROAD. YEAH, YOU’D HAVE TO ASK YOURSELF, OKAY, IF THIS DOESN’T CONSTITUTE AN INSURRECTION, IF A PRESIDENT IS NOT AN OFFICER, AND IF NOT BEING ON THE SCENE ENGAGING IN HAND TO HAND VIOLENCE IS NOT AN ENGAGE IN THE INSURRECTION. WHAT’S LEFT? WE’RE NOW BASICALLY ENHANCING THE BELT AND SUSPENDERS OF THE OFFICE OF THE PRESIDENCY TO INCLUDE THAT CONDUCT AS CONSTITUTE. WELL, PROFESSOR KIM WEHLE, THANK YOU SO MUCH