No Lie with Brian Tyler Cohen - Secretaries of State weigh Trump disqualification in 2024

Episode Date: September 3, 2023

Secretaries of State consider removing Trump from the ballot due to Section 3 of the 14th Amendment. Brian interviews Arizona Secretary of State Adrian Fontes about the process that he's considering regarding disqualifying Trump from the ballot, how the courts will play into this, and what the deadline is for a decision.Donate to the "Don't Be A Mitch" fund: https://secure.actblue.com/donate/dontbeamitchShop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about secretaries of state removing Trump from the ballot due to Section 3 of the 14th Amendment. And very fittingly, I interview Arizona Secretary of State Adrian Fontez about the process that he's considering regarding disqualifying Trump from the ballot, how the courts will play into this, and what the deadline is for a decision. I'm Brian Taylor Cohen, and you're listening to No Lie. So obviously, Donald Trump's criminal trials have been sucking up a lot of the oxygen, but now the issue of Trump being disqualified from the ballot is also elbowing its way into the spotlight. So I'm going to talk a little bit about the process for disqualification, although not too much because my interview today is literally with a secretary of state and he's a much better authority on this than I am. But I mostly want to focus on whether it's a good idea to take this route. So Section 3 of the 14th Amendment prohibits anyone from holding public office if they have engaged in insurrection or rebellion or aided those who've engaged in insurrection or rebellion against the U.S. Donald Trump summoned a mob to the ellipse on January 6.

He knew they were armed and he conceded that they weren't there to hurt him. He turned them toward the U.S. Capitol. He stoked anger toward Mike Pence, who was at the Capitol for doing his job. He refused to deter the insurrectionists for hours while they ransacked the building. The insurrectionists themselves conceded, both in person and in court, that they were there on Trump's orders. And when Trump finally did deign to tell them to go home, they listened thereby proving that they were acting at his direction. The notion that Donald Trump did not violate Section 3 of the 14th Amendment is about as likely as Donald Trump weighing 215 pounds. So very quickly, because again, I think Adrian Fontes will be able to speak to this much better than I can.

The issue now will come before every respective state's secretary of state who can make the determination either to keep Trump on the ballot or remove him by the time that their primary ballots are due. Either way, whether they put him on or leave him off, it'll draw lawsuits and those suits will be legated to the final authority, which of course is the Supreme Court. How the Supreme Court will rule, I have no idea. I mean, I know how Clarence Thomas will rule, but the rest whose wives didn't help perpetuate. the crime at the heart of this very case, that remains to be seen. So this issue will absolutely be front and center as Secretary of State continue to figure out what to do in the coming months. But the question now becomes, should they? Should they remove him from the ballots? I know that having a Secretary of State disqualified Trump from a ballot feels different than a jury

of his peers convicting him on charges for which there is a boatload of evidence, right? And that at first glance, it probably has an anti-democratic feel because everything in the Constitution is up to interpretation and interpretations tend to vary based on what side of the aisle you're on. But there are two reasons why I think the answer here is yes, that they should disqualify him from the ballot. The first is that he engaged in and aided those who engaged in insurrection. Again, I listed out a raft of examples at the top from summoning his supporters to the ellipse to telling them to march to the Capitol, knowing that they were armed to turning their focus onto Mike Pence to do something that he had no legal authority to do. And so the

Constitution is clear and the events surrounding January 6th are clear. That's the whole ballgame. And if we're going to not enforce the Constitution because we're worried that the right is going to cry foul, then we can never enforce any laws because guess what? They're going to cry foul regardless. I remember losing my mind over Merrick Garland's pussyfooting around this whole investigation because he was so worried about the optics of looking politicized. Here's the thing. Not prosecuting someone because you're worried about the optics of looking politicized is also politicizing it. And the same applies here. If secretaries of state pick and choose when to enforce the Constitution because of optics, then they're doing the exact thing that they are trying to hedge

against. So the only responsible move here is for those secretaries of state to do their job and enforce the Constitution regardless of the blowback. Because remember, it is not their fault that Trump is in this position. No one forced Trump to incite that mob to violence. No one forced him to send them to the Capitol. No one forced him to sick them on Mike Pence. That was all him. So if these Trump accolites are looking for someone to blame in all of this, it ain't the Secretaries of State. It's the guy who landed himself in this position himself. And here's the second reason that these Secretaries of State should disqualify Trump, because it'll be taken up by the Supreme Court anyway. The stakes aren't that high for them because the final decision will rest with the

highest court. So at this point, there's no reason not to enforce the Constitution and disqualify him from the ballot. If they needed a permission structure to be able to make a hard call, there's nothing more helpful than knowing that at the end of the day, the onus isn't on any one of them to give a definitive answer to this question anyway. So with that said, here's my interview with Arizona Secretary of State, Adrian Fontez. Now you've got the Arizona Secretary of State, Adrian Fontez. Thank you so much for taking the time. Thanks for having me. So the question of whether Donald Trump will be disqualified from state ballots in 2024 is a main focus across the country right now. Can you walk us through the process of what you're

considering here? Well, what we're considering is a number of factors. some of which came to us last year. So, for example, in Arizona, we have a Supreme Court decision that indicates that the, that section three of the 14th Amendment cannot be enforced because there's no federal enforcement mechanism. Now, I'm on record saying that that's pretty absurd because that means you can't enforce the natural born citizen clause and you also can't enforce the 35-year-old clause. New Mexico, on the other hand, has indicated otherwise.

And I think they actually removed someone from office who participated in the insurrection. So we have a conflict of laws right there among those two states. There are conservative law professors, even one, a founder of the Federalist Society who's indicated that it is not only, the Section 3 is not only in effect right now, but is sort of mandatorily executable. And a guy like me who doesn't disqualify Mr. Trump is subject to a lawsuit. And there are some other folks who agree that it may actually be in effect, but you just can't enforce it. And then there's a varying other set of circumstances like what's the standard of proof that we would use? So there's a lot of considerations that we have to take into account right now. I guess the best way to say it is we are deciding how to decide.

Now, there is a lot of talk about secretaries of state and the courts. Will the onus be on you to decide whether or not to include him on the ballot and then it will be litigated afterwards? Or will this be litigated by the court first and then you'll take your cues from them? Well, it's as much a question of duty as it is of timing. I have a duty by the time we hit the 14th of December to notify my local election administrators as to whose names are going to be on the ballot. That's my certification as the Arizona Secretary of State. Different states have different rules. So we'll just talk about Arizona for now.

December 14th deadline. But at the same time, we may end up in court. And that means that I will have to follow whatever the courts are saying. So there's a timeline involved. There are different courts and different, you know, superior authorities involved. And so we're just going to have to see how this thing plays out. Now, I know that you're going to be doing a lot of listening here, but you're also an expert in this area. So based on your knowledge of Section 3 of the 14th Amendment and what it says about the eligibility of someone who engages in or aids someone who engages in an insurrection. Do you think that Donald Trump is qualified to appear on the ballot in 2024? Well, I can give you a quick answer, but that wouldn't do it justice. So let's run through a quick

analysis here. And what we have is a federal grand jury in one of the January 6th cases and a state grand jury in Georgia. Both of them have determined by a legal standard called probable cause that there's enough evidence to go ahead and try Mr. Trump and others for criminal liability for having participated in the insurrection on January the 6th. So there is some competent authority under judicial supervision that has already made the determination that is probable cause. That's a legal standard. That's more likely than not. Now, that's higher than preponderance of the evidence, but it's also lower than two other standards, clear and convincing evidence, and then the highest one in order to meet criminal culpability

beyond a reasonable doubt. So you've got four pretty well known, and it's not all of the legal standards, but we'll stick to those four for now. We really don't know which legal standard is supposed to apply to this particular test. And that's really the question where we're at right now. If it is merely by a preponderance of the evidence, which is a lower burden than has already been met by a state and the federal grand jury, then the answer becomes much more easy. If it's clear and convincing evidence, then it's a higher burden than either of those grand juries met. So we're in a space right now where we've got to figure out what test to apply to the facts that we know. That's the question that we're at right now. So the answer to your question,

whether or not he's eligible, really lies on which test we use to determine that question. And how will we know which test is ultimately the one that we have to go with? Like, how do we know what that threshold is going to be? Who's the authority that determines that? Well, finally, this is a question of constitutional law. And at the end of the day, that's the U.S. Supreme Court is going to make the final decision. But somebody along the way, whether it's us by the time we hit December the 14th or some other secretary of state, some other state authority, someone's going to make that decision along the way. and then it's going to move its way through the courts, I hope very quickly so that we can answer

the question, because here's my number one goal. My number one goal isn't whether or not Mr. Trump is on the ballot. That's not my goal. My goal is to make sure that we can run our elections with certainty. We can know who's eligible because we've got to print ballots. We've got to get voters moving. We've got to have this information so that our local election authorities can actually do their jobs. And that's one of the things I think that gets forgotten about here is there's work to do, right? This isn't just about who wins and who loses. There's a lot of work behind the scenes that has to happen. Let me give you a, for example, our presidential preference election, which is our primary, is on March 19th. We have to transmit ballots to military and overseas voters

45 days before that date, according to federal law. So we've got a clock that's ticking here, and we just need to know how to answer the question about what the tests are. How do we make this decision so that we can then make it. Now, you'd mention this issue being litigated in other states. Do you want this to be uniform across states here? Like, will the decision on whether or not to include Trump on the ballot take into account what other states do? You know, I think it has to be uniform. This is a question of the presidency. This is the Article 2 power under the Constitution and who is eligible to run for that office. It is critical that we have a uniform standard across the United States of America. Now, is it different for governors of the 50 states? Yeah,

again, it's a federal republic. We have state governments that are to a degree somewhat sovereign from the federal government. So can we have two different sets of rules there? I don't think there's an issue with that. But that having been said, we need to know what the rule is for federal officers. Now, here's the other really interesting thing. Section 3 is sweeping. It is radical. It is an enormously powerful piece of the Constitution that was meant to encompass every elected office in our government, state, local, federal, and so forth. We need to know what the rule is. That's the critical component here. Once we know what the rule is, we can apply it and we will apply it faithfully.

But right now, we've been known to say, and I've said, I don't have a choice because the Arizona Supreme Court has leaned one way. but that goes without saying that the federal courts are going to intervene at some point and they may rule a different direction. So we'll just see how it plays out. No, I know that this will ultimately be litigated by the courts, but in the meantime, you are speaking to constitutional scholars and experts and attorneys. I presume that what may happen is that those on the left will say that Donald Trump isn't eligible to run for the presidency based on Section 3 of the 14th Amendment.

And those who have a right-leaning bend will say that he is eligible to run for the presidency. So how do you reconcile that? How do you make a decision that transcends the political affiliations of the people that you're speaking with? Well, I don't have to do that. It's already been done. The two authors of the main law review article that has really illuminated this issue and brought us to the conversation are both very conservative law professors. One of them was a co-founder of the Federalist Society. You don't get much more conservative than these guys.

Right. And a lot of the, you know, Judge Ludick, I may have mispronounced his name, apologies, is a very well-known conservative scholar and author. These folks are not left-wingers and they're not Democrats. And they're flat out saying in their arguments that Mr. Trump is not eligible to run for president of the United States of America. So I don't see this as a political question. Is it a question about politics? Yes. but it is not in and of itself a political question.

This is a question about the rules and how the rules apply. Let me give you a quick, for example. One of the arguments that these folks are making is that the First Amendment does not apply here as a defense. Why? Because the 14th Amendment came later, and that means that it supersedes any possible protections that the First Amendment might bring, right? Just like the amendments themselves supersede anything that's in the body. of the Constitution itself, later in time. So the bottom line is this is a question of the rules themselves, not about the outcomes or the politics. And as long as we keep it in that framework,

we can keep the politics off to the side. And that's where it ought to be in these questions. How much attention is your office getting on this issue in particular right now? Well, we're getting a lot of attention because, you know, we're talking about it. We're showing folks that the rules matter, how the rules work. We're having conversations about this. And I think that's good. I think it's good for transparency. For all of the weirdness and uncertainty and unusual things that have happened since Mr. Trump got into politics, the one thing good we can say is that, you know, we took some of the most basic functions of government for granted for a very long time. Nobody knew how our elections were. Nobody knew who ran our elections. Very few people understood that there was even a Section 3 in the 14th Amendment. Right. So what we've got here is a live action civics lesson happening and unfolding. And for us to just be quiet about it and talk about it in public would be to shortchange the conversation, a civil conversation about the rules because the rules are what separate us from so many other places. The rule of law

is real in the United States of America. It is a core value of ours. And it's one of the reasons why Mr. Trump has received so much resistance from the political right, because they believe, a lot of them believe that he has operated above and beyond or even outside of the rules, and they don't like that because it's not an American value. So this is really an opportunity for us to have these conversations, and I relish that. I know that there is a lot of political violence right now, and with secretaries of state across the country, kind of at the heart of this issue, have you been okay? deal with any political violence, any of that bullshit?

Well, I certainly do appreciate the question. And my office and our staff have been taking necessary precautions as we get around the country and do the things we need to do, not just for myself and my family, but our staff. We've taken the appropriate trainings and we're dealing with the appropriate law enforcement and security officials here in Arizona in communication with our federal, state, local partners. So we're doing everything that we need to do to stay safe. It is a horrible statement, however, that something so civil in orientation, something so bureaucratic and administrative in orientation has become the subject of threats of violence

or actual violence. That's the disgrace that we face. Now, if we could just have these conversations in a civil manner without threats of violence, boy, that would be much more American, wouldn't it? And we wouldn't have to have all of these extra expenditures and costs and monitoring of whatnot just because some people can't get over the fact that their emotional attachment to one candidate might be overwhelming their reason. That's a real problem. And that having been said, we're not going to shy away from the conversation. This is still America. We are still strong.

We are still willing to have these conversations in a civil way. And that's what's going to win the day by the time we get to the end of all of this. Well, speaking of people who can't get over their emotional attachment to a certain candidate, Kerry Lake is reportedly mounting a Senate bid in Arizona. She's already polling atop the Republican field. I'm sorry. Who? I'm sure you'll hear plenty more about her. What is your reaction to one of the country's biggest election deniers, again, becoming the face of the Arizona Republican Party?

I have no reaction to that. This is an irrelevancy. This is an attention-grabbing grifter, as I understand it. And I pay as little attention and as little breath as possible to this set of shenanigans. That actually is the perfect answer right there. Well, finally, a lot of Republicans like Carrie Lake, but obviously not limited to her, they're still claiming that the elections in both Arizona and across the country were rigged. So what is your definitive response to accusation?

that the elections in your state, for example, weren't free and fair? They're wrong. It's just that simple. They're wrong. They've never brought any real evidence. They've never made any actual claims. You know, the three major state candidates who continuously push this nonsense have all been sanctioned by the courts for bringing frivolous lawsuits. That's how wrong they are. Their accusations are costing them money. So, you know, it's just, it's just grift. The sad thing is this. There are two real victims to these lies.

Number one, the people that keep sending these guys money. I mean, the grift is real. These folks keep saying, oh, we've got new evidence and all this other stuff. I mean, that knucklehead that I ran against said he had a binder of evidence that he was bringing to his representatives on January 6th. Guess how many people have ever seen that binder of evidence? none because it didn't exist because he was lying. He was flat out lying. And if he wasn't lying and he sees this, he needs to bring that evidence forward. Let's see it. Let's see it. And I'm just calling him, pants on fire. That's just what it is. And the second victim, not just the folks that

keep pouring money into these people, the second victim is our democracy itself. The faith we have in one another as America is that civil, that civic faith, right? That we believe that the folks who take these votes of office to be poll workers or vote center workers or truck drivers with voting equipment or you know just these banal jobs these are the folks who are suffering the most they're the ones who are getting threats they're the ones who are being called fraudsters they're the ones who are being called liars a guy like me never touches a ballot i'm an administrator at the leadership level i'm never going to touch a ballot or program a computer and also all of those folks who are just doing their jobs they're the ones who are getting beat up on this

and the faith that we have in one another as Americans is suffering. So, you know, these folks just, they make themselves professional victims for the purpose of grifting. And the side effect is they're hurting America and they need to stop. I think that was perfectly put. Well, thank you so much for the work that you've been doing and for comporting yourself with such integrity, especially in the face of all of these, you know, all this lunacy in these attacks. So with that said, Secretary of State, Adrian Fontes, thanks so much for taking the time. Thanks for having me. I appreciate it.

Thanks again to Secretary Fontez. That's it for this episode. Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review, and check out Brian Tyler Cohen.com for links to all of my other channels. Thank you.