Will any Dems OBJECT to Trump under ELECTORAL COUNT ACT?

What happens if 20% of the house and 20% of the Senate decide to try to reject electoral votes for Donald Trump, because he was an insurrectionist. And could that lead to Kamala Harris becoming the president? And even if it couldn't,

Is it worth the price of admission for Democrats to lead that charge under the 14th amendment? I'm Michael Popok. Yes, you're on the minus touch network and legal AF. There's new writings going on. I just read an article in the Hill written by a couple of former Yale law school editors in chief back, I don't know about 50 years ago, who also clerked for the United States Supreme Court about 50 years ago, who wrote an article

I wanted to break it down for you because there's so much going on in the...

in the, in YouTube verse about the 14th amendment and a likely outcome. I've always focused on a likely outcome and not on magical thinking, but I do want to explore this issue under the Electoral College Count, the Count Act, which empowers Congress and solely Congress, not the Supreme Court, not any other branch of government, to count the electoral votes on January 6th and certify them. There is a mechanism under the Electoral Count Act as amended in 2021.

for an objection. And the grounds for the objection is argued by these two scholars, these two, these two authors, is that if you have that Congress can reject particularly any vote, any vote that is not regularly given, that's a term of art, not regularly given. One way to interpret that is if you're

if you're voting for an insurrectionist or some of that's been a judge to be that, it's not regularly given. Now, whatever I'm going to tell you now, I'm going to have to overlay on top of it.

the decision over the summer in the Supreme Court ruling of what we call Anderson, the Colorado case about an insurrectionist on the ballot or an insurrectionist being voted. Of course, we have a different set of facts now because that insurrectionist has been elected and voted by the people. So the question here fundamentally that's been asked, is can the language of the, of the count act about not regularly given, be used

to deny someone who's been declared somehow to be an insurrectionist by Congress of getting that electoral vote in their tally. Yes or no. And what's the mechanism behind that? The mechanism can be used. I'm not here to say that if 20% of the Democrats in the House and the Senate get together, I think it can be a different 20% and they decide to object to the electoral count by arguing that Donald Trump's an insurrectionist

that it was proven to be an insurrectionist both by his impeachment but not conviction in the second impeachment trial in which the House impeached him for his role in inciting an insurrection using the word insurrection. And then a later a five day trial in Colorado.

in which Donald Trump participated, put on evidence. Evidence was taken by the trial judge. It was affirmed by a close vote at the Colorado Supreme Court. And there they ruled that he was an insurrectionist and should be banned from the Colorado ballot.

which brought us to the Anderson decision. So the mechanics are there. So I started the hot take with should 20% of the Democrats in the house in the Senate object to the electoral college vote, at least as a moral, a moral objection, even though it may not and is, let's be frank, won't lead to enough

of the majority of the House and the Senate to confirm that or affirm that, to take Donald Trump's electoral votes away from him and declare Kamala Harris to be the president.

Is there a moral value to doing that? Yeah, I'm not going to debate that. Sure. If I was in the house, I may lead the charge and get up there and say and try to get 20% of my votes, which is like 42, 43 other voters to come along and declare that and shave off a lot of the votes for Donald Trump and try to declare Kamala Harris the winner. But then you need, in order for that to happen, even if you get over, was he properly declared to be an insurrectionist?

And if you get over the fundamental question coming out of the Anderson decision, which is, is Section 3, Article 14, sorry, the 14th Amendment Section 3, is that self-effectuating, activating, or does it need a new law of Congress to be established, a new process of Congress to be established, not for disability removal, as some people have argued, but to actually implement Section 3.

Because whether you call it dicta or you call it the holding of the decision in the summer, and I know that difference matters, there's a debate.

which has not been resolved by the United States Supreme Court as to whether there needs to be another action taken by Congress in order to declare someone an insurrectionist. There is no debate that the Constitution and the ruling in Colorado says that in order to remove a disability from somebody,

the insurrectionist label has to be done through an act of Congress. But the question is under section, under section three and section five of the 14th amendment, whether Congress needs to take another step and pass another law or mechanism in order for that to happen or is it just self actuating? I have all these people. I've heard all these people on YouTube say, he's an insurrectionist. I can see with my own eyes, he's I can read. I can read. I heard somebody say, I can read. Yeah, I can read too.

I can also read the Supreme Court decision and I also see the cards in front of me about the Supreme Court. Did the majority of the Supreme Court say in their holding that under section three and section five, the 14th amendment that Congress has to act before an insurrectionist is banned or barred from taking office? That is one legitimate way to read it.

There's no other way to talk about the language in the Anderson decision from the summer in which the Supreme Court majority says section five and Congress's role in implementation is a critical component of the 14th amendment. I don't know how else you read that. You'd have to read it out of your analysis in order to say, I can read the 14th amendment. It should apply.

Now, you also have to get over the hurdle about sort of the findings against Donald Trump. I think we can all agree it can't just be a poll. Like let's take a poll to decide whether Donald Trump was an insurrectionist. I think we'd win that poll, maybe 52, 58, 59, 60%. We'd probably win that poll, but that can't be a poll. So is it a court declaration?

Is it an impeachment process? We have one court declaration, effectively. The Colorado state court lawyer, sorry, judge, who ruled after hearing five days of evidence that he was an insurrectionist. Donald Trump was an insurrectionist. We have that. Went up to the Colorado Supreme Court in a closely divided decision. They have firms. We got that. Do we have a federal judge saying he was an insurrectionist? Not about the Constitution. No. Do we have the United States Supreme Court ultimately declaring Donald Trump to be an insurrectionist?

No. Do we have an impeachment of Donald Trump on a count involving insurrection? Yes. Second impeachment trial, insurrection, the incitement of insurrection. Do we have a conviction of Donald Trump for insurrection, a conviction at the Senate level in the impeachment process? No.

So you have sub-yeses and you have sub-nose, okay? Doesn't change the fact that the Electoral College Act, Count Act, and I can read that too, says what it says, which is 20% can't object. Then it goes where? Goes to a full vote majority wins house and Senate. As to whether that objection properly lodged at the 20% level,

makes those votes canceled because a majority agreed. I think we could all agree, speaking of agreement on this particular hot take, that we're not going to see a majority of the House, right? Some huge number of the House in majority, which is primarily controlled by Republicans,

side for it. And we're certainly not going to see 67 in the Senate side for it, right? We're not going to see any numbers close to that. We'll probably see 51 or 52 in the Senate, 15 votes short, at least to affirm that objection. And in the House, the numbers could be a little bit closer, but still won't get us to double majority that we needed the House in the Senate.

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for those that are out there. Is that I could read?

And I have a legal background and I'm pretty skilled at constitutional analysis and constitutional scholars may not all agree, but they, we can agree to a legitimate set of facts. I have, you have the right to your own opinion. You don't have your right to your own facts. Fact, Donald Trump was convicted, if you will, or that's a wrong word. Fact, he was found by a Colorado trial judge affirmed by the Colorado Supreme Court of having committed insurrection. That's a fact.

fact. He was impeached but not convicted of incitement of insurrection. Fact. He was not

a judged by a federal judge or a pellet judge, a federal pellet judge to be an insurrectionist fact. The United States Supreme Court did not find Donald Trump to be an insurrectionist fact. It can't be enough that we just take a poll about what we think and feel about what happened on Jan six and everybody knows what I think and feel about Donald Trump's behavior on Jan six, he's an insurrectionist, but that can't be enough fact.

There was a ruling at the United States Supreme Court level about the 14th Amendment Section 3 and its disqualification clause, at least as it related to state ballots and the ability to ban federal officers and presidential candidates from state ballots. Fact. There was a ruling, a majority ruling that primarily benefited Donald Trump. Fact. As part of that,

The majority, six to three majority on that, on that, I'm sorry. I keep saying six to three, nine zero, nine zero majority. I was thinking of the immunity decision, the nine zero Colorado Anderson case.

The majority, I mean, there was a bunch of opinions that were written, but the heart of the case is that a state cannot, through a finding of insurrection, through a trial court level or otherwise, take a federal presidential candidate off the ballot. But in doing so, they also, as part of what some people refer to as dicta.

or some people refer to as part of the underpinnings of the decision, also pointed to section five. And I think there is a, based on that, there is a majority consensus if it was pushed to them. That Congress has to act not only to remove a disability, but also to bar an insurrectionist who is a president through the Electoral College count or to be seated as president or to be entitled to an inauguration.

and that is the emphasis in Anderson on section five and the obligation or the power of Congress to act to implement 14th Amendment section three fact. How you see that as dicta or as holding as they said in the majority, the critical role of section five in the 14th Amendment section three analysis

It exists. And then what I'm doing in shorthand at least, because you know how much time can we spend on a hot take, is to tell you that it is likely, more likely than not, high probability that this United States Supreme Court has currently constituted.

would find, based on the Anderson decision, that the Congress has to take one more step, has to take an act, not just to remove disability, but to bar a president of the United States who has been voted that way by a majority of the people from taking office, that it's not just going to be done sort of cavalierly or casually, that it's a big deal.

We may not agree with the votes. I want to get to the bottom of where nine people, nine million people went from the Biden vote and why 20 million people decided to sit on the sidelines of our democracy. That's for another day and another hot day, but that happened. And if you have the votes and you have the electoral college and the votes have happened for a Congress to say that the will of the people and the voting that's happened is not is going to be overruled.

right? We talk about it in terms of disenfranchisement on this network. That's a big deal. And this Supreme Court is going to require for that big deal that there be an act of Congress and establishment of a procedure to remove him, to remove that candidate, even if you get through this electoral college vote. Now, you can avoid all of that, except that there will be a Supreme Court challenge. If the 20%

vote to object to the Electoral College count, but they can only object on two grounds, right? And one of them is the one I'm talking about, which is that the vote was not regularly given, because unless if the vote was regularly given and it arrives, it's got to be counted.

So you could see where, even if they win that vote, somehow got their majority decision. The Supreme Court would say, no, that you violated the Electoral Count Act because you've made a decision about the regularness, the regularity of that vote given that's improper under the way we interpret insurrection and 14th Amendment.

And so we're back to the 14th Amendment, Section 3 and Section 5, all over again. I'm trying to outline this because they're... Let me tell you straight. When you shorthand this, when you try to do this analysis in soundbites in one minute and two minute and three minutes, being led by people who are not skilled in this area, it leads to a lot of... What's the word my grandmother would have used?

It just leads to a mess. It's just a mess. I have friends in Miami who would refer to it as it's just mango and rice. It's just a mess. And I'm trying to make it less messy by going through the things that we can all agree to as we get to the analysis. At the end, it's an analysis. And it's a projection and a prediction about what the United States Supreme Court is going to do with the toolbox that I've been given. Yes, I agree to that. And I may not have.

full agreement out there in law-pundit world on YouTube, but that's okay. I've never been one to march to the beat of somebody else's drum, right?

but I want you to understand how we got there. Because it's so easy to hear the criticism, right? Oh, Popok can't read. Oh, oh, might as touch can't read 14, three. They can't read. They don't, they, they're, they're misreading the statue. They're misreading the constitution.

I'm not. You may not agree with how I've gotten to this logical conclusion, but I've gone to the blackboard with the chalk and I've showed you the equation and how it comes out to a certain way. If you want to solve for that equation in a different way that is honest in its thinking, in the integrity of its thought, there's the blackboard.

But we're going to do it our way here because this is what we believe it. Not because somebody's telling me to do that. Does anybody really think I want Donald Trump to be inaugurated? And I wouldn't be working morning, noon and night the way I already am to deny him that seat. If it were possible, who believes that? Having watched me for four and a half years on this network. Nobody.

But I'm not here to sell ratings, right? Or to get more views or to get more subscriptions. We'd like that. Independent analysis and commentary on independent channels is important right now, I believe.

But that's not why I went to the Blackboard to explain the 14th Amendment Section 3, Section 5, all of the different cases, all of the different pieces of this puzzle and then try to put it together the best way that I know how. That's why I'm here. I'm Michael Popok. This is the legal AF and Midas Touch channels. You can follow me. I'll do stuff like this on all different topics over a 45 minute spread on Tuesday nights on Midas Touch called Popok Live.

I even take questions and I give you answers and my commentary, my opinion, my analysis. Wednesdays and Saturdays, legal AF, the YouTube channel, legal AF, sorry, legal AF, the podcast on this YouTube channel for Midas Touch and then on all podcast platforms of your choice. And then again, we've got a new legal AF YouTube channel. We call legal AFMTN. Go over there, help us build that as well.

So it's durable and lasting on the other side of the inauguration. I'm Michael Popok and I'm reporting. In collaboration with the Midas Touch Network, we just launched the LegalAF YouTube channel. Help us build this pro-democracy channel where I'll be curating the top stories, the intersection of law and politics. Go to YouTube now and free subscribe at LegalAFMTN. That's at LegalAFMTN.