Former President Donald Trump already knows he's not going to get the Supreme Court to absolve him of the factual finding he participated in an insurrection, said former federal prosecutor Elie Honig on CNN Wednesday — but he has ways to get his name back on ballots in Colorado and Maine.
"If we're talking about the Fourteenth Amendment, what Donald Trump does in his brief that he submitted yesterday challenging the disqualification is he gives himself a lot of different ways to win," said Honig.
Honig then went on to break down the former president's argument.
"He focuses on the procedural side — that's where this is going to be decided," Honig said Wednesday.
"He says it's up to Congress, not the states, to tell us how the Fourteenth Amendment works. Congress has not done that, other than passing the criminal law.
"But then he says, even if it is up to the states, Maine did not follow its own procedures."
Additionally, Trump rehashes the lower trial court's decision that the presidency is not an "officer" and is, therefore, not subject to the 14th Amendments ruling that insurrectionists can't hold public office.
All told, Honig said, "What Trump is doing is giving himself four or five different ways to win. Lawyers like to do that ... any competitive endeavor, you up your chances."
"Do they see — as you read it, can you pinpoint what they think the most effective?" said anchor Phil Mattingly.
"I think they understand the appeals courts are not going to say, we find you did not engage in insurrection," said Honig. "He understands that is up to the fact-finder. I think he is looking for an argument that's going to take this out of the state's hands altogether, which is one of two arguments.
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"One is, it's up to Congress. In their absence to act, the U.S. Supreme Court finds that all these claims go away. The second one is that the president does not count as an officer argument. I'm not compelled by that myself if I were the judge, but it has gotten some traction. It's a way for the Supreme Court to dispose of all of these cases in one shot."
As for whether the court does get involved, Honig continued, "I think they are going to have to get involved in the Colorado matter ... they can rule on this if they take the Colorado case one of two ways. They can rule in a narrow way that will invite 50 of these challenges, if they say it's up to the states and we find Colorado did or did not follow its own processes."
"Colorado will stand or fall. You'll have 49 other challenges. I think they are going to be looking for a way to make one ruling and say, that's the end of this nationwide, is that's my guess."
But, he added, "I have to say, we're all guessing here. Uncharted territory."
