Brian Lehrer: Brian Lehrer on WNYC. Have you heard about this lawsuit that aims to keep Donald Trump off the presidential ballot next year because he violated the insurrection clause of the 14th Amendment? The trial began yesterday with opening arguments and the first witnesses for the plaintiffs against Trump. We are very happy to have with us to talk about this now someone very relevant to this issue because this is, for the moment, a state case in Colorado.
We have the highest state election official there, Colorado Secretary of State Jena Griswold. She is also chair of the Democratic Association of Secretaries of State. Secretary Griswold, thanks so much for coming on for this. Welcome to WNYC.
Jena Griswold: Well, thanks for having me on.
Brian Lehrer: I know you're on a tight schedule and we have you for about 10 minutes so I'm going to jump right in and read this relevant sentence in Section 3 of the 14th Amendment so our listeners know the context. It says, "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature"-
this is a long sentence- "or as an executive or judicial officer of any State, to support the Constitution of the United States"- here we go- "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." My question to you off the bat is, are you just explaining this to us or are you taking a position that Trump should be disqualified?
Jena Griswold: I'm taking the position that this is in a court of law and a judge should weigh in. To give a quick overview for your listeners. Basically, the Constitution says that if someone swears an oath to protect the Constitution, they're disqualified from office if they then engage in insurrection, rebellion, or give aid or comfort to the enemies of the Constitution.
A lawsuit was filed in Colorado that says that Donald Trump is disqualified because of his engagement in the insurrection. We're in trial this week. I am a party because I'm the statewide elected official responsible for oversight of statewide elections like the presidential, and I look forward to a court's resolution of the issues. I'm hopeful that this case provides guidance to election officials in terms of Trump's eligibility as a candidate this election cycle.
Brian Lehrer: Now, Trump hasn't been convicted of insurrection or giving aid and comfort to insurrectionists. He is facing various 2020 election-related charges that could be construed as that if he's convicted, but so far, no. How could a court now disqualify him?
Jena Griswold: Believe it or not, the historic use of this constitutional provision did not require a criminal conviction. Section 3 of the 14th Amendment was put in place after the Civil War, and it was used to remove hundreds of Confederate soldiers and officials from their posts. At that time, it did not require a criminal conviction. We'll see what the court says, but you could imagine the court saying, "Well, we're just going to determine in civil court whether or not he engaged in insurrection and whether or not that makes him ineligible or eligible to run for president again."
Brian Lehrer: Does the insurrection have to be the January 6th riot, or can it be the nonviolent parts of the Trump coup attempt, if you will, getting members of Congress to try to reject the electoral college results through political pressure or pressuring state officials and jobs like yours in other states to reject the true outcomes? Can that count as far as this lawsuit is concerned, even if Trump is held not responsible for the riot?
Jena Griswold: I think so. Remember, the phrase that's really important in the Constitution is, did he engage in insurrection or rebellion or give aid or comfort to the enemies of the Constitution? I think it just really depends on what the petitioners who filed this lawsuit present in court and what evidence the court takes. There's nowhere in the Constitution that says it has to be specifically because he incited the January 6th insurrection. Everything is on the table. There's a couple of these lawsuits filed across the nation.
Brian Lehrer: I'm particularly interested in the aid and comfort part of this, because, as I'm sure you know, there have been people who have been convicted of seditious conspiracy, which is like insurrection from the Proud Boys and elsewhere. They testified that they were acting on Trump's behalf and on what they thought was Trump's request. We even have Trump's promise to pardon people convicted in connection with the January 6th riot at the capitol. All of that might most directly add up to something that's in the 14th Amendment clause there, the aid and comfort clause.
Jena Griswold: We shall see. That's exactly the question in front of the court. Did he disqualify himself from running for president? Now, in Colorado, there is a law that allows voters to file a lawsuit like the one that we have in court this week to challenge whether a candidate can appear on the ballot. I think with a lawsuit this big, this crucial, with a lot of open-ended US Constitutional questions, it's appropriate for a judge to weigh in.
This is clearly an unprecedented situation. We've never had a president incite an insurrection, an attack on democracy like Donald Trump, and I look forward to what the court decides its guidance will be.
Brian Lehrer: This, as you're indicating, is a voter-generated suit. I understand there's another one like this starting in Minnesota. We'll see if this gets to the Supreme Court, which a lot of people think that it will. Let's say the court in Colorado does find Trump is disqualified, and let's say the Supreme Court upholds that, would that disqualify him nationally?
Jena Griswold: If the US Supreme Court disqualified him?
Brian Lehrer: Correct.
Jena Griswold: I can't tell you what would be in a decision from the US Supreme Court when this is just in District Court. That's a little premature. I think that the gravity of this issue is not being understated. One thing that I think is really interesting is that this case is so foundational to whether Donald Trump can run for office, whether he disqualified himself by engaging in insurrection, that you would think he would want to show up to defend himself.
Donald Trump is not going to testify. He is not going to give deposition. This is someone who takes every opportunity to grandstand about the cases against him. His silence in this case is deafening.
Brian Lehrer: I saw some commentators on TV yesterday as this trial in Colorado was beginning, who are very anti-Trump, but asking, isn't all this just helping him? Isn't it better to just beat him in the next election so a big minority of the country doesn't think he's being politically removed?
Jena Griswold: My job as Secretary of State is to follow the law and uphold the Constitution. Where there are questions about the law or Constitution, a court should weigh in, and that's exactly what's happening. If the US Constitution dictates that he's disqualified, then as a nation we have to respect that and vice versa. I think it's appropriate for the courts to weigh in. This provision of the Constitution is there for a reason. It's to ensure that people who have engaged in insurrection or rebellion against the US Constitution are not in positions of power. It's to preserve the nation as a democracy that functions.
Ultimately, we'll see what the court says, and that's what we will have to follow. Of course, an appeal can always be filed after this initial court decision, but whatever court decision is at play, whatever order is in place at the time that I certify the ballot, that's what I will follow as Secretary of State.
Brian Lehrer: I know you got to go in two minutes. Let me tack on another issue relevant to you as a state election official, Secretary of State of Colorado. If Trump is nominated again and loses again and tries to get state officials to flip the results again, last time they all resisted, including the Republican ones who mattered, but the landscape has changed after various state elections and appointments since 2020. How confident are you that the same scenario would end the same way in states other than yours, and what's the best defense, in your opinion, to protect against that breach of electoral democracy if Trump is on the ballot?
Jena Griswold: That's a really good point, because in 2020 and leading up to the insurrection, there were many civil servants in the federal government that resisted unlawful commands and actions. There were many election officials who stood on the line like Georgia Secretary of State, and refused to find the extra ballots Trump asked him to find.
Our landscape has changed. We have seen the Republican Party embrace MAGA Republican rhetoric and extremism and most recently the new speaker of the House of Congress is a full-on election denier who assisted Donald Trump in trying to thwart the peaceful transfer of the presidency.
Your point is spot on. The corrosion of extremism and election denialism is worse now than it was in the beginning of 2021 when the insurrection happened. We all need to be paying really close attention to what happens next election. All your viewers or your listeners can take an active seat at the table by casting a ballot and deciding who will represent us. The people in Congress matter. They matter because they'll be in the middle of certification of the next president. The president matters. All these local officials matter. For me, I think American voters once again have this grand opportunity to save democracy and reject extremist candidates who are corrosive to our society and are putting us on a bad path as a nation.
Brian Lehrer: Colorado Secretary of State, Jena Griswold. She is also chair of the Democratic Association of Secretaries of State. We'll be watching what happens in that case and whether the 14th Amendment is seen by the courts as reason to remove Donald Trump from the ballot. Thank you so much for giving us a few minutes today.
Jena Griswold: Of course. Thanks, Brian. Thanks for having me on.
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