CNN’s senior legal analyst Elie Honig said Tuesday that former President Donald Trump’s legal team may end up presenting one “long shot” argument in the 14th Amendment cases.
Trump’s team is slated to appeal both a Colorado Supreme Court ruling and a decision handed down by Maine’s Democratic Secretary of State that will remove Trump off the ballot pending appeals to the Supreme Court.
Honig said there are three arguments Trump’s team will likely make.
“This is a complex sort of legal question. There’s a lot of different issues swirling. But let’s break it down into three questions. First of all, who decides? Now, if we look at section 5 of the 14th Amendment it tells us that the Congress, meaning the U.S. Congress, shall have the power to enforce by appropriate legislation the provisions of this article. Trump’s team will argue that means Congress and it’s not up to the states. The opponents will argue, no states can still make their own processes to go along with Congress. If that’s true, if the states do have the right, to do their own processes, that brings us to the second question by what process?” Honig explained.
“How much due process is owed here? If we look, for example, at Colorado, look, these don’t have to be criminal trials. That’s the highest level of due process. But the question is was there enough? Colorado had a five-day trial, they had some live witnesses, they had a member of Congress, they took in documents. Some of it has hearsay which wouldn’t be admissible, but again, it’s not a criminal trial. If we look at the Maine process, there was less. That was a one or two-day hearing. The only witness was a law professor. The secretary of state relied on documents including YouTube clips. So, the question is, was either of these enough due process?” (RELATED: CNN Legal Analyst Rips Maine Secretary Of State For Relying On YouTube Clips In Her Ruling)
“The final question is and this one may seem a little odd, is the president an officer of the United States? I think logically you go, of course. There actually is an argument that’s made sometimes that if you look at the construction of the Constitution, the president is actually separate from an officer of the United States. I think that one’s a long shot but look for that argument to be made as well,” he continued.
Maine Secretary of State Shenna Bellows kicked Trump off the ballot following three challenges related to Trump’s appearance on the ballot. Bellows, who is not a lawyer, ruled Trump incited an insurrection and violated Section 3 of the 14th Amendment and was therefore prohibited from appearing on the ballot.
The Colorado Supreme Court ruled Trump was ineligible to appear on the ballot under the 14th Amendment while the same question was rejected in Michigan and Minnesota and other states.