The Chris Cuomo Project - Trump’s January 6th Indictment & The 14th Amendment

Episode Date: August 3, 2023

Chris Cuomo examines Donald Trump’s recent federal indictment over January 6th and considers whether the Constitution’s Fourteenth Amendment could disqualify Trump for running for a second term as President. Learn more about your ad choices. Visit megaphone.fm/adchoices

Trump indicted for his role in the January 6th riots. Is this okay under the law? Is it going to be okay politically for the rest of us? Does that matter? I got a wild card that could come up in the legal analysis that you haven't heard yet. What is it? The Chris Cuomo Project is supported by Cozy Earth.

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Plus, the price is going to vary based on product and subscription plan. I'm Chris Cuomo. Welcome to this special little take on what is going on around us here in the Chris Cuomo Project. Political style, legal style. Thank you for subscribing and following. For checking out the free agent merch, for checking out News Nation, 8 and 11p Eastern every weekday night. Now, what is the real legal jeopardy for Donald Trump? Well, he has plenty, but federal is scarier than state. And if I have told you before, the case in New York under Alvin Bragg

is weak tea, okay? And I don't think it goes anywhere, this tax offense, business record offense for the payoffs to the girlfriends. I don't think it's going to pass legal muster, and I really don't believe it passes political muster. Now we get to the federal side, and that has more teeth. Why? Well, who would you want going after you? The state or the fed? So the idea of the classified documents, I think we're in a situation where he did the wrong thing. The Presidential Records Act is not a defense that deals with people who are in office and when they're vacating it, not two years later and what they've decided to keep for good, bad, or no reason, okay? But again, I don't know that it has the kind of there there that will really persuade people politically.

Now, there is the law of accumulation. The more stuff there is, the more burden it becomes by some voters. Some voters may also offset that by thinking the more burden Trump carries, the more they're out to get him, so the more I'm for him. Okay, that's a very fringy feeling, but that's kind of where we are. rebellion and potential treason and giving comfort to the enemy, which sounds like treason and the language is echoed in the insurrection federal statute. But what does it mean as manifested by what has not been part of the conversation until now? Section three of the 14th Amendment. Holiday hoodie, whatty? I know. It is something that you've probably never heard discussed, but it is real, and it is in the body of the 14th Amendment, and it goes to

the bar to office for participation in insurrection. It is part of the 14th Amendment. insurrection. It is part of the 14th Amendment. Now, what is it? Does it matter? First of all, yes, it matters because I think it is as legitimate an idea of right and wrong and analysis thereof as anything else we're talking about. Yes, there are specific statutes at play. There are here as well. But just like everything else, it's murky. It's an unfamiliar area of jurisprudence, and we haven't seen a lot of it exercised. You're going to hear more about this in connection with January 6th. So you might as well know what to know, all right? What is it?

Okay, what it says basically is it's a disqualification cause. If you've been involved with insurrection or giving comfort to those who've rebelled against the government, then you are disqualified from holding any office. Now, here are the interesting things about it. If you look at the idea of insurrection in connection to January 6th, you don't have a great legal foothold. Why? Nobody's being charged with insurrection. I know that word is used a lot politically, and I know that people could make a constructive argument politically for why what happened on January 6th was them trying to overthrow Congress or stop Congress from executing the law of how to

end the election. Okay, I get it. But federal prosecutors have, to this point, charged nobody with insurrection. Some seditious conspiracy, but that's not the same thing. And there is a statute, 18 U.S. Section 2383, that is about insurrection. And it's someone who incites, which is to encourage, sets on foot, which is a great arcane phrase.

What does that mean? Gets people moving in the direction of doing the rebellious thing. Assists, engages, okay. And what are you doing? You are going against the authority of the United States or its laws. So that creates another bucket

because isn't trying to stop them from ending the election stopping the authority to execute the law? Yeah, you can make that argument. You can make that argument. You don't need to be convicted of that for the section of the 14th Amendment to apply to you. Why? Because it ain't in there. And you want to be one of those constitutional people, right? Oh, they didn't mean it for this. Can't have it both ways, brother. Can't have it both ways. It ain't in there that you need a conviction. Okay. So you know what else isn't in there? That it applies to the president. It's not in there.

Now, if you look up the legislative history of this section, you will see that there was debate about this and people saying, I don't think it applies to president because what's listed in there is not president. I'll read it to you. 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 any state having previously taken an oath as a member of Congress or as an officer of the United States or as a member of the state legislature or as an executive or judicial officer of any state to support the Constitution of the United States. So it doesn't say president. All right. But they say, yeah, but it does say or hold any office, civil or military, under the United States. So that would be the catch-all that would put a president in there, and the president has taken an oath, right? But it's interesting that he's not there, so you get past that.

It doesn't say you need a conviction, which means if he's just indicted or just accused of it. Now, you get to the real question, which bothers me about a lot of this stuff. Look, no shame in my game. I've been using AG1 for over five years. Why? It works, it's easier, and it's less expensive. That's why.

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Why? Because it's giving you access to affordable and discreet sexual health treatments. And you do it right from your couch. HIMS provides access to clinically proven generic alternatives to Viagra or Cialis or whatever. And it's up to like 95% cheaper. And there are options as low as two bucks a dose.

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So you can, but should you? Okay. Should you indict Trump in connection with January 6th? Are you going to convict him? I think the chances are very small. Why? Because you're going to have to convince a jury, because he'll opt for one, right? He probably won't want to leave it in the hands of one judge, even if he appointed that judge, that he was the real motivating force behind what those people did and that they were trying to overthrow the government

and that's what he wanted. I don't think you get there legally. Now, I also have a feeling about why this matters that is offensive to a lot of people because they say no one is above the law and I am saying that there are different sets of rules for different people in different situations and I push back on that by saying, yes, it's called prosecutorial discretion. And they make decisions all the time about who to try and who not, not exclusively on the basis of whether or not they can make a case beyond a reasonable doubt

or whatever the applicable legal standard is. There are other considerations that can come into play. And yes, that can be abusive and it can play to prejudices, but it also can just play to the public good. And I don't know that it takes society to a better place by chasing Donald Trump for something that is not overwhelmingly obvious to the American people. personal take on it. You do not have to agree, and I'm not saying that I'm right. I'm saying that's what I believe makes the most sense here, but I'm not in the business of making those judgments. Others are, and to a certain extent, you are. Now, the idea that, well, dismiss this out of hand because I've never heard of it before. Well, that's your ignorance, not about its

existence. Has it ever been used for this? No. It was put in there really to deal with the Civil War in the aftermath and getting people who are known Confederate people to not hold offices. That's where it's been mainly used. However, however, I did find in New Mexico, a state court kicked out a county commissioner

for being part of the organized effort on January 6th. So there is a state case. Now, here's the bigger problem, okay, in my mind, legally. I don't know how you do this. I don't even know that this is a self-executing section, meaning that it puts a mechanism in place for how to have this happen. I almost think that Congress would have to pass a law to make this apply to certain people. I mean, there is a chance that somebody could just say they have standing because they've been injured by Trump becoming president because of what he did on January 6th. president because of what he did on January 6th, and then it becomes a civil suit and a remedy could be disqualifying him for office. If you look at the New Mexico state case, the commissioner's name is Otero, O-T-E-R-O. It's interesting. It's interesting. Do I think it happens? No. Do I think people are going to push for it that you haven't heard yet? Yes, I do. I

think you're going to be hearing more about this, obviously, almost exclusively from the left. Now, what's interesting to me about that dynamic is, so you're going to have the people who are constitutional purists, that you've got to live the letter of the four corners of the document, are now going to be taking the opposite position on this. Because they're going to say, yeah, this isn't what they meant, though. This isn't what it's for. It's never really been used for this. Ah, great.

Okay. Because that reasoning applies to the Second Amendment, right? Which had never had an individual right read into it until Scalia's case in the 2000s. And we know from the legislative history that, first of all, it wasn't put second because that's how important it was. of history that, first of all, it wasn't put second because that's how important it was. And Washington and others had pushed for it because of their concerns about how untrained and poorly equipped our military was. And the founding fathers were worried about having a massive standing army because they saw that as a tool of the state that could be used to oppress,

and they wanted to keep it about occasional militias and loosely formed, And you had to come in when there was a problem. And Washington was like, I don't know how we're going to win like that. But I'll tell you one thing. These guys are untrained and most of them don't even have weapons. And I don't have any central armory. So they got to have weapons. They've got to be well-maintained weapons, meaning they work. And they got to know how to use them and they got to show up. That's where it came from. So we sure have run far afield of that. But on this one, they're going to want to be purists. That's why I hate the game. But this is really interesting. And to the extent that Trump, I'll tell you why it's interesting, because you're a critical thinker. And you want to think about what are the different ways to see

this, especially if he's indicted. If he is indicted as being someone who gave aid or comfort to the enemy or those who are inimical to America, boy, that's language right out of the treason statute. And yes, the insurrection statute is very similar to treason statute under federal law. Well, then what are you going to do about it? And what is the mechanism? And what are the principles involved here in the concepts? 14A, section three is really interesting to look at. I do believe that the problem is going to be implementation. And I don't think it gets that far, obviously, but it's going to be, well, how would we do this? How would we do this? You know, would there be a prosecution? Yeah. Look, if it's, you know, it doesn't read a need for a conviction, but if you get one

for insurrection or treason, and by the way, they're like right after each other. I think treason comes first in the code. It's like 2381 and then 2383 is insurrection. Anyway, then you have a bar to holding office anyway under either of those laws. So then you don't need this Section 3. So that tells you that this is seen as something that was additional to that. Why would they keep this section? Why wouldn't they have gotten rid of it?

That's a question to ask. Congress could enact new legislation to enforce Section 3, but they haven't, and that ain't going to happen. You know, Article 1, Section 5 of the Constitution says the House and Senate have varying degrees of control over their own membership, including qualifications and expulsion. But they don't really oversee the executive. So I don't know that that gets you there. But it is an interesting question. And I like when people chew on what our constitution allows and how, and how our system works and why.

I think it's important. And I think if Trump winds up getting hit on the elector scheme, that's a Georgia state situation. I think that's the greatest legal jeopardy out there for him. I always have. Why? Because putting forward, people will say,

no, no, no, people put forward alternative slates of electors all the time. Yeah, states do that, not outside actors. And while they were just giving a suggestion, okay, that could get you around it. part of an effort to put in a fake set of electors to change the results in a state election for state-certified aspect of the presidential election, that is the most connected, directed action that we will have involving, that would be the straightest line analysis of Donald Trump knowing, intentionally acting to pervert the outcome, rigging the election, or trying to. And trying to would be enough under the law in that state. Interestingly, even if he is indicted, he can still run and hold office. What if he is convicted? What do we know? I'm telling you, there's a chance the guy would still be able to serve. What if he's in prison? Where is the line?

How would we deal with that? Now, you're not going to like this, many of you. I hope we don't get to that point. Why? But that's the law. That's the way the system works. Yes and no. Yes, that is a theoretical straight line approach to no one is above the law, and this is how it it works and this is how we keep justice as fairness under law and what if it completely leads us in the wrong direction politically for the next several years because of how angry justice? Is it still fair if it winds up upsetting society? And I don't mean hurt feelings. I mean chaos. Oh, but that's not a reason not to do it. Otherwise, you're going to have chaos anyway. These are all legitimate questions and arguments that we're going to have to chew on. So then why am I hoping that we don't have to chew on them is president of the United States. So he failed.

Even if he wanted to do it, even if he tried to do it, he failed. Well, punish him. Is that going to be the best result for society? That's not the test. I don't know. Then what's the right test? And these are real questions. And I don't know necessarily the right answers or the answers to your satisfaction.

But I'm telling you, given what's going on right now, of all the wild things that we've heard and all the things that seem to be arcane or esoteric or not really mainstream things that get prosecuted on a regular basis, the 14th Amendment has the most authority of anything that we're hearing. It's a direct constitutional provision, and there is a section that deals exactly with this, which is what Donald Trump is in the crosshairs of right now. What do you think? Question, comment, appreciate it. Hope it helps give you food for thought.

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