Lawyer Explains Supreme Court's 'Only Wiggle Room' in Trump Colorado Case

Glenn Kirschner, a former federal prosecutor turned legal analyst, believes the conservative majority of the U.S. Supreme Court will "twist itself into pretzels" trying to find ways to overrule a Colorado decision to bar former President Donald Trump from the state's primary ballot.

The U.S. Supreme Court, with its 6-3 conservative majority, will decide whether to hear Trump's appeal of the Colorado Supreme Court's unprecedented ruling last week.

Colorado's high court ruled 4-3 to bar Trump from the state's 2024 primary ballot after determining that the former president, who is the front-runner for the Republican presidential nomination, isn't an eligible candidate because of a Civil War-era clause in the 14th Amendment of the U.S. Constitution that mandates officials who take an oath to support the Constitution to be banned from office in the future if they engage in "insurrection."

Those opposing the former president's eligibility say his actions during and related to the January 6, 2021, riot at the U.S. Capitol amounted to engaging in an insurrection.

Kirschner, a staunch Trump critic who previously served as an assistant U.S. attorney, weighed in on the MAGA leader's Colorado case during a segment of The Daily Beans podcast that aired on Monday.

He said the Colorado Supreme Court's ruling is a "wonderful Christmas gift for our democracy," saying that a person who engaged in an insurrection and continues to do so can't be president.

Kirschner said during the segment that while he believes "inevitably" the U.S. Supreme Court will agree to hear Trump's appeal, he thinks the nation's high court will not rule in his favor.

He argued that because the Colorado courts, which have heard from witnesses and gone through the trial process, have ruled Trump engaged in insurrection, "that is a factual determination that will not be disturbed on appeal, in my opinion, even by the Supreme Court."

The veteran attorney told Newsweek in a phone interview on Wednesday that the Colorado rulings in both the trial court and state Supreme Court determined that Trump "absolutely engaged in an insurrection."

"It gets pretty complicated because the Supreme Court, I think, will want to accept the review of these cases generally; however, they have to defer to the state courts and the state legislatures, because they have the absolute right to enact different laws," Kirschner told Newsweek.

Newsweek reached out to representatives for Trump via email on Monday for comment.

"The only wiggle room for the Supreme Court would be if they decided that a president wasn't one of the officeholders who should be disqualified from holding the most important office of the United States after he tried to overthrow the government," Kirschner said.

However, Kirschner said that scenario would be "insane."

"As sure as I am that the Supreme Court will not rule that Donald Trump is a king and is above the law and has absolute immunity, I'm not entirely sure that the Supreme Court won't twist itself into pretzels trying to find a way to say a president gets to engage in insurrection, and still hold office," he said.

Prior to the Colorado ruling, critics had been arguing for months that Trump should be ineligible for the ballot, accusing him of motivating those who stormed the Capitol with his baseless claims of election fraud after his loss to President Joe Biden in 2020.

The former president has continued to deny any wrongdoing and has repeatedly said that the January 6 case is part of a political witch hunt against him as he campaigns for reelection.

Update 12/27/23, 9:30 p.m. ET: This article has been updated to include comments from Kirschner's interview with Newsweek.