Interview: ‘The Constitution is clear’ Colorado plaintiff in Trump eligibility case hopes U.S. Supreme Court agrees

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22min 26sec
Ryan Warner/CPR News
Krista Kafer is one of the plaintiffs in a case being heard this week by the Supreme Court. Kafer is seeking to remove former president Donald Trump from the ballot in Colorado’s presidential primary in March.

In trying to have Donald Trump removed from the ballot in Colorado’s upcoming presidential primary, Krista Kafer says she’s lost friends and acquaintances, not to mention being censured by fellow Republicans – including Dave Williams, the head of the state GOP.

“He has referred to us as henchmen, or liberal henchmen, or henchmen for Democrats, whatever,” says Kafer. “I just want to say I prefer ‘henchwoman.’”

Whatever the nomenclature, Kafer and the five other Republican and independent voters whose case for deposing the former president will be heard Thursday at the U.S. Supreme Court, may be on the verge of acquiring another title – history makers. Citing a seldom-used clause of the 14th Amendment of the U.S. Constitution, the group argues that Trump is ineligible to appear on the ballot because he took part in an insurrection – the incursion at the U.S. Capitol in Washington, D.C. on January 6, 2021.

In an interview with Colorado Matters senior host Ryan Warner, Kafer, an educator, television host, and columnist for the Denver Post, talks about the potential ramifications of her actions, as well as the process that led to her deciding to buck her party and join the lawsuit against Trump. 

“I read the (law)suit, thought about it,” Kafer told Warner. “I thought of that old fable of the mice wanting to bell the cat. All the mice get together, a congress of mice, if you will, and they'd say, ‘Well if we put this bell on this cat, we'll hear him coming. He won't be able to eat us.’ But not a single mouse stepped forward to bell the cat.

“And as I've just thought about everything about this issue, both the unintended consequences of action, the unintended consequences of not acting, which are, I think, even more substantial, I thought, if this is the right thing to do, somebody's got to bell the cat.”

The following transcript has been edited for length and clarity.

Ryan Warner: What expectations, what hopes, what worries do you have for Thursday?

Krista Kafer: My hope is clarity. I hope that the Supreme Court and I don't have to hope, I know they will give this their due diligence. I know that they're going to look seriously at this issue. Nine very different people, all of them very committed to the country, very committed to the Constitution. I know they will give this their all, and I hope we come out of it with some clarity around how this should be applied today.

Warner: Interesting. You don't say, "I want outcome X or Y."

Kafer: Well, I obviously want the outcome that we've sought, which is that an insurrectionist should not be on the ballot, not here in Colorado, ideally nowhere in the country. There needs to be a line. And we've got criteria in the Constitution, as you know, residency, natural-born citizen, age, no more than two terms, and no involvement in insurrection. We are a country of laws, rule of law undergirds all that is good here. We absolutely have to uphold that.

So do I want clarity? Yes. Do I want even more than that? That somebody who's been involved in insurrection stays off the ballot? That's what I want.

Warner: When you first heard the argument around the 14th Amendment, this post, just after the Civil War, creation that had been used sparingly in the many decades since what did you think?

Kafer: Well, I knew that there were two scholars with the Federalist Society that had written about it.

Warner: Yeah, and that's really what got this started.

Kafer: Yes, it was very persuasive to me. But it's interesting if you look at some of the rhetoric around those who wrote this or the things they were saying at the time, they were saying, "We're writing this for this situation, but we're also writing it for the future." Because if somebody is willing to subvert …

Warner: You're speaking of the writing of the 14th Amendment and this clause in particular…

Kafer: Yes. The people who penned that, if you look at some of their speeches, you'll see them say, "We're doing this because it's important now, but it's also important in the future." And you think about some of the parallels here. Lincoln won in a four-way race. He only got 40% of the vote. And there were a number of states and leaders in those states, leaders who had taken an oath to the Constitution, who said, "We don't accept the vote. We are not going to concede to Lincoln. We're actually going to take up arms."

Fast-forward to today, albeit it's a lot smaller, I get that, but it's still the same thing. It's, "I don't accept the vote of the people. I'm going to hold on to power. I'm going to do what's necessary, including the fomenting of violence, to stop the peaceful transfer of power." It's the same thing.

Warner: Three of the justices were nominated by Mr. Trump. Does that matter to you? Do you think that's an important detail?

Kafer: No, it doesn't. I could see where people could be skeptical, but I really feel like these are honorable people. All of them, even the ones, the members of the court that I don't agree with very often. These are people who take their jobs seriously. If you think about it this way, they're asked to rule on things that other politicians do all the time, whether it's state legislatures, federal departments, or whatever, they make these rulings all the time. They have to constantly set aside the fact that they may have personal feelings, personal loyalties. They set those aside so that they can make the ruling that best comports with the Constitution.

Warner: Do you think Justice Thomas should recuse himself?

Kafer: No, I would like all nine justices to be there. I think it's important that the most liberal through the most conservative actually take a look at this case. And I know that his wife was there at the march. She was not one to break into the Capitol. I do know Jenny from my DC days, she's a decent person, but like millions of Americans taken in by the lies told by Trump and his enablers. And I don't agree with the fact that she was there. I obviously hate that destructive lie. But I don't think that it necessarily will alter the way her husband takes a look at this case.

Warner: Another high-profile election case before the U.S. Supreme Court Bush v Gore in 2000 was decided the next day, I looked this up. Has anyone given you a sense of how quickly the ruling may come?

Kafer: I hope it's very, very soon. And the reason I'm over here smiling is that I was there when that ruling came down, and I remember those days. It's interesting to be back but in a different context. The sooner, the better on this one because the closer we get to the primary and then, ultimately, the closer we get to the general, the stakes go up and up and up.

Warner: How did you come to be attached to this lawsuit? I understand the answer might be found in an Aesop Fable.

Kafer: Yeah. I talked with a friend of mine, local lawyer Mario Nicholas, who is one of the lawyers on this case and a former Republican. He knew I had been very critical of the Trump administration, not just during the four years, but the day after the election when he started pushing that false narrative. I actually looked back, I'd written a column at the Denver Post that month decrying that false narrative and the danger to say that you've been cheated or that you really won.

So he knew this, and so he knew that he could approach me with it. I read the suit, thought about it. And as you mentioned with fables, I thought of that old fable of the mice wanting to bell the cat. All the mice get together, a congress of mice, if you will, and they'd say, "Well, if we put this bell on this cat, we'll hear him coming. He won't be able to eat us." But not a single mouse stepped forward to bell the cat. And as I've just thought about everything about this issue, both the unintended consequences of action, the unintended consequences of not acting, which are, I think, even more substantial, I thought, if this is the right thing to do, somebody's got to bell the cat.

Warner: And you don't see it as the voters’ job to put the bell on him. And that's an inelegant way of saying that a lot of the pushback against this suit is to let the American people decide.

Kafer: Well, we can decide on eligible candidates across the board. I voted for him in 2020. I thought he was a despicable man. I preferred some of the policies and I liked the judges. I knew that I was voting for a despicable person and I did it. It's not the first time an American has voted for the lesser of two evils in their own mind. I could name off all kinds of candidates, people who are deeply, deeply, deeply flawed.

But the Constitution is clear: Sure, you can vote for a flawed individual, but you cannot vote for somebody who is ineligible to run. You can't vote for former President Obama, former President George W. Bush because they've each served two terms. For all those Swifties out there, I'm sorry, Taylor Swift is out. She's not quite of age. Arnold Schwarzenegger, not a bad governor, probably would make a decent president, not a natural-born citizen.

So yes, the voters should decide when it comes to things like character and policy. But when it comes to eligibility, the Constitution is clear.

Warner: You said that you knew when you voted for Mr. Trump that he was despicable. I think a lot of Trump's longtime detractors would ask, how did you not see something like this coming? This is a man who has skirted the law for much of his life.

Kafer: I guess that's what we always ask ourselves after something like this, is how did I not see it coming? Had I known that the next day he would refuse to concede and start pushing a lie and ultimately foment insurrection, no, I wouldn't have voted for him, obviously. But at the time, he was just this sort of grotesque person who had done some good policies.

Warner: The last time you were on our show, Krista, was right after the Roe decision was reversed. You're anti-abortion. And your disapproval of Trump now, it challenges something we've come to believe about American political life today. That we are so tribal and so entrenched and that wedge issues are so intractable, that people would vote for just about anyone who supports their beliefs. But you disprove that now. That Trump is a bridge too far for you, despite holding some of your beliefs. I just want you to reflect on that.

Kafer: I realize that for most people, the line of whether or not to vote for somebody is a partisan line, right? For the most part, Republicans vote for Republicans, Democrats vote for Democrats, and I don't begrudge anyone for voting according to party. When I ran for office, if my friends didn't want to vote for me because they're Democrats, I wouldn't have been mad because I get that, right?

But I think at some point, we have to realize that party should be subordinate to who we are as human beings. Of course, that goes to being pro-life, loving, and honoring the dignity of every human being, but also goes to the fact that we're all Americans. And when he tried to disenfranchise 80 million Democrats by overturning an election, that was the line for me. The fact that he was willing to push that narrative, that false narrative, along with his enablers, such that people would take up arms to keep him in power. Insurrection is a line. It's a line I'm willing to stand by.

Warner: Many Trump supporters don't see January 6th as an insurrection, despite the prosecutions, despite the violence that day, despite the long tail of that violence. Have you had conversations with folks who just don't see January 6th as that consequential? And what do you say?

Kafer: I've actually lost, I wouldn't say friends, acquaintances who no longer want anything to do with me because they genuinely do not believe that an insurrection happened. And that goes to the power of lies. Not just Trump's lies, but his enablers' lies. The fact that there are Republican congressmen and women who, behind closed doors, will say, "Oh, yeah, Trump lost and there was an insurrection." Whether they use that term or not, they know that what happened on January 6th was serious. And yet they will go out in front of their supporters and equivocate and say things like, "Well, maybe voting machines were compromised." We know they weren't. "Well, maybe the FBI or maybe Antifa was there." We know they weren't.

These lies have been disproven, and yet these people get up in front of their followers, in front of their voters, in front of their constituents, and they echo those lies, either by echoing them directly or indirectly, by refusing to take them on, refusing to tell the truth. And I hold them as responsible as the people who showed up on January 6th, as well as Trump for not telling the truth.

Warner: So you say you've lost friends over this. Have they left you or did you leave them? Just curious.

Kafer: So if you're a friend of mine and you bad mouth me on Twitter, chances are I'm going to unfriend you on Facebook. But again, these are acquaintances, are sort of in the broader circle of friends. If you're going to call me a traitor, I may not want you at my party. But some of these other folks, they unfriended me after berating me first, said to me... I even had somebody tell me that they thought I was probably going to go to hell. Needless to say, we don't hang out anymore.

Warner: You know the secretary of state here, now justices on the state Supreme Court have been threatened. Have you been threatened? Do you feel safe these days?

Kafer: I've been a public figure as a commentator, weekly columnist with the Denver Post. Talk show host. Occasionally, I get to do something really celebrity-like and go on CPR. But I am a sort of a minor public figure, so diligence is always required and just making sure that we are situationally aware. Am I more aware? Yes. Do I feel afraid? No.

Warner: Why not?

Kafer: I don't think that's a good way to live your life. You should always choose to do the right thing and just go from there.

Warner: I'm right to say that your adversary here is not just Mr. Trump, it's also the state Republican party. Like the Republican party in your own state, in your own party. How does that feel?

Kafer: Well, they've censured me, which is kind of funny. The Arapahoe Republican party has formally censured those of us that are on this case. And I believe (State GOP Party Chair) Dave Williams referred to us as henchmen, liberal henchmen, or henchmen for Democrats, whatever. And I just want to say I prefer henchwoman.

Warner: Why do you remain a Republican?

Kafer: Somebody's got to turn off the lights when the party's over. Now, I've left in the past. I left when Trump became the nominee in 2016. This is going to sound so quaint. I was very mad. This was during the George W. Bush era; they held a vote open for three hours and they broke their rules trying to get this vote because they wanted it so badly. And it made me so mad that they would go back on their word and go back on their rules just for political expediency.

And it seems really quaint now because bigger things have happened. But I was a Democrat in my early twenties. I became a Republican, I was a Republican, and then I've left. I think I've left three times. And this time, I want them to leave.

Warner: And say who they are. Let's just be explicit.

Kafer: I think the people who really support and follow Trump. Not people who are going to vote for him because they think he's the lesser of two evils, but the real hardcore supporters that are willing to be part of that false narrative. I kind of wish they'd formed their own party, to be honest.

Warner: But it doesn't seem like they're leaving. And it doesn't seem like this is thwarting Mr. Trump at all in any of the early primaries.

Kafer: No, it's kind of disturbing. And I don't know that I'm long for the party because of that. I believe he is a demagogue. I wouldn't put him in the same category as certain famous European demagogues. But in the Huey Long tradition, in the McCarthy tradition of American demagoguery. This is a person who uses people's emotions and distrust of institution or distrust of other Americans to push his own agenda, but even more to push a kind of cult of personality.

And so, when you have somebody who can say something like immigrants poison the blood of the nation, which is a despicable and sort of terrifying thing to say about fellow human beings. I guess I had read a poll that 72 percent of Republicans agreed with that. And then when they heard that Trump had said it, that figure actually went up in terms of who agreed with it. That's the power of a demagogue.

Warner: Why do you think those also in power in the Republican party go for it?

Kafer: I think it's a combination of cowardice and hangers-on.

Warner: Is it money too? Is it fundraising?

Kafer: I think fundraising, definitely. But you think about the cowardice of, if you're brave like Liz Cheney, and you go up and you speak the truth-

Warner: You lose In Wyoming.

Kafer: Yeah, you lose in Wyoming, you lose in probably a lot of conservative districts. So there's the cowardice and then there's the, "Hey, if I say I love you man up on the stage with Donald Trump, I might get to be in the cabinet." There is definitely a sense that people who have helped and enable him expect not only him to be kind to them, because he's very nice to people that like him and very cruel to those who aren't his fans, I think they fear not only him and the things he will say about them, but they also want his praise, and ultimately, they want to share in that power.

Hart Van Denburg/CPR News
The Colorado Supreme Court and Court of Appeals building in Denver.

Warner: Do you fear his criticism? I'm thinking a bit of the E. Jean Carroll case. He's had trouble keeping his mouth closed.

Kafer: It's crossed my mind that when he speaks, his followers, a very small percentage, are willing to take up arms and attack the Capitol. What else are they willing to do? I don't know Jena Griswold. I do pray for her and her safety because I know she's gotten death threats. And I've prayed for our Colorado Supreme Court justices, for their safety, because I am concerned about those on whom that shadow has fallen.

Warner: There is some protection in this case though, isn't there?

Kafer: He's under an order right now, he can't talk about us.

Warner: Do you think there's an outcome that's most likely, or is that just a guessing game?

Kafer: I think it's a guessing game. I do have every faith that the nine justices will rule well. I think even if you disagree with what we're doing, having some jurisprudence around this issue is important because there hasn't been much.

Warner: What if they say this is Congress's to determine? That's one potential outcome.

Kafer: Definitely makes things interesting. I don't know what's going to happen. I do think that we'll have some clarity. I think that it's raised the issue. But here's my big fear. I asked myself at the time, what are the unintended consequences of both acting or inaction? Acting, of course, you think, "Well, if we do this, does it sort of weaponize this part of the Constitution?" In the same way that it kind of happened with impeachment and it happened while I was a congressional staffer. I remember those hearings and the sense that, well, if we impeach someone for perjury, and…

Warner: You're speaking of the Clinton Administration.

Kafer: Yeah, I'm speaking of the Clinton administration, perjury, and ill use of taxpayer funds to handle your extracurricular activities. Is that a high crime and misdemeanor? Maybe it is, maybe it isn't. But ever since then, it's been used or threatened to be used every administration. It seems like before they even take that office, someone's drawing up some papers. So impeachment is now used for important things, like the things that President Trump was impeached for. But it can also be sort of thrown about casually and used as a political weapon.

So there's a fear that this could happen here as well. Can anybody now point a finger and say, "That's insurrection. That person has to recuse themselves from this election?” I get that that could be an unintended consequence, a sort of cheapening of the third clause of the 14th Amendment.

But I also ask myself, what are the unintended consequences of inaction? And right now, we have an escalation, and I've witnessed this escalation through the Clinton years on until now, of rhetoric and political tactics. Every time one side does something, the other side does it. We're now at a new low in terms of what people can do in office. So not only are people saying nasty things about their opponents, nothing new there, an escalation of that rhetoric through social media. We now have somebody who's refusing to concede an election, coming up with an elaborate lie, and then fomenting violence in an attempt to stay in power, in an attempt to disrupt the peaceful transfer of power.

If that is not stopped, if the court rules against us and says, "Yeah, that's okay." Maybe they don't think it's okay morally, but they'll say, "Well, the Constitution doesn't apply here," and they allow this to become the new normal, what then? Does Trump do it again? How about a couple of administrations from now when things aren't so good? When we're in an economic depression. When someone worse comes along and there's nothing there to say, "You can't do this and run again?"

Because right now, if they rule against us, it basically says, "Yeah, you can do all of these things and if you fail to keep yourself in power this way, feel free to run again. It's totally fine." This says, "If you take this oath, the oath to the Constitution and to the country, you cannot then trample that oath by engaging in insurrection."