Yesterday the Colorado Supreme Court disqualified Donald Trump from appearing on the ballot in that state. The Court found that Trump is barred from serving as President by Section 3 of the 14th Amendment to the United States Constitution. That provision states:
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 under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Passed shortly after the Civil War the provision was intended to prevent those who participated in the rebellion against this nation from serving in the offices of this nation. Its effect, for the most part, lasted only a few years as Congress removed the disability pursuant to that last sentence above in a blanket amnesty for most (but not all) former Confederates.
However, the provision remains in the Constitution and can be applied to modern insurrectionists. In New Mexico, “Cowboys For Trump” leader Couy Griffin was removed from his office as a County Commissioner for his minor participation in the events of January 6th.
The Colorado Trial Court Rules Section 3 Does Not Apply To The President
Voters in Colorado sued to keep Trump off both the election and primary ballots under an unusual law in that state that permits them to do so. The trial judge denied various motions advanced by Trump to dismiss the case and held a five day trial on the matter where both sides presented witnesses and arguments.
On November 17th the trial court judge issued a ruling that in almost every factual and legal finding was adverse to Trump. The trial court found that the events of January 6 were an insurrection, that Trump incited an insurrection, that Trump engaged in that insurrection, that Trump engaged in the insurrection with the intent of interfering with the count of the electoral college votes, and that Trump’s words and actions were not protected by the First Amendment.
However, the trial judge used some head spinning reasoning to conclude that Section 3 does not apply to the office of President of the United States. The judge noted that Section 3 names both Houses of Congress and electors, but does not similarly specifically include the President. Declaring it a close call, the trial judge then refused to apply the catch all phrase “as an officer of the United States” to the office of the Presidency of the United States.
Thus, the trial court ruled that Trump could be on the ballot in that state.
The Anonymous Colorado Supreme Court Opinion
Both parties appealed to the Colorado Supreme Court. The voters sought to reverse the holding of the trial court and bar Trump from the ballot. Trump appealed challenging the trial court’s determinations that he incited and engaged in an insurrection.
Yesterday the Colorado Supreme Court issued a 4–3 decision reversing the the trial court and holding that Section 3 of the 14th Amendment bars Trump from office. The Colorado Supreme Court affirmed the trial court’s determinations that the events of January 6 were an insurrection, that Trump incited the insurrection, that Trump engaged in the insurrection and his words and acts were not protected by the First Amendment.
The majority decision was per curiam, Latin for “by the court.” This means that no specific justice is identified as the author of the opinion. At least on the federal level per curiam decisions are not the norm.
They are even less frequent when there are authored dissenting opinions, as was the case here. As discussed more below Chief Justice Boatright and Justices Samour and Berkenkotter authored, and signed, separate dissenting opinions.
We know the remaining four Justices, Marquez, Hood, Gabriel, and Hart all voted with the majority to bar Trump from the ballot, but we don’t know who the specific author of the decision is.
In trying to evaluate what this means, the obvious answer is that no one justice wanted their name on the decision for fear of being the primary target for retribution from the violence prone MAGA world. If so, that is a rather telling comment itself on the dangers Trump presents to our system.
The majority opinion standard of review was de novo (as if new) for the legal conclusions of the trial court, but for the factual determinations the majority applied a more differential standard of review of whether the trial court made a “clear error.” The trial court held itself to a clear and convincing evidence standard for its factual determinations.
Was January 6th An Insurrection?
The Constitution does not define insurrection and courts have struggled to find a uniform definition. Trump’s attorneys argue January 6 was a mere riot, not an insurrection. The trial court defined an insurrection as:
“(1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.”
While doing nothing to repudiate that definition the Colorado Supreme Court took a slightly different approach. The majority agreed with Trump’s characterization that an insurrection is more than a riot, but less than a full rebellion, falling on a spectrum between those two. The Colorado Supreme Court found that it need not precisely define insurrection to conclude that, “public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country,” easily qualifies as an insurrection.
The court found that substantial evidence supported that the use of force on January 6th was concerted and that the mob acted with a unity of purpose, “seeking to inflict violence against members of Congress and Vice President Pence . . . upon breaching the Capitol, the mob immediately pursued its intended target — the certification of the presidential election — and reached the House and Senate chambers within minutes of entering the building.” The Colorado Supreme Court found there was substantial evidence “that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment.”
The Colorado Supreme Court concluded, “under any viable definition, this constituted an insurrection.”
Did Trump Engage In The Insurrection
The court found little precedent for what Section 3 means by “engaged in” an insurrection. For precedent the court relied on cases where it was determined someone “engaged in” treason. The court cited an 1807 treason decision by Chief Justice Marshall where:
“if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
The court cited an 1851 jury charge:
“It is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories.”
The Colorado Supreme Court agreed with the trial court that:
“engaged in” requires “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.”
The overt act part is important. By that, Trump’s highly criticized failure to respond to quell the violence does not rise to engaging in the insurrection. Trump had to have an active, and not passive role in what occurred.
The Colorado Supreme Court found there was substantial evidence Trump had that active role. He pushed false claims that the election was stolen. He actively refused to commit to a peaceful transfer of power. He pressured Vice President Pence to overturn the election results. He intentionally targeted state election officials, such as Brad Raffensperger, for harassment and intimidation from his supporters. He organized “Stop The Steal” rallies where his inflammatory language fired up the crowds. When one of those rallies turned violent, Trump justified it. Trump summoned the crowd to be there on the very day of the electoral college certification with his “be wild” tweet on December 19th. A tweet violence prone supporters like the Proud Boys and the Oath Keepers viewed as a “call to arms.”
Trump knew his own law enforcement agencies were concerned with increasing risks of violence on January 6th. Even so, on that day he tweeted that the election could be saved if Mike Pence had the courage to act. In the midst of the violence he tweeted that Mike Pence was a coward, effectively directing the mob against Pence.
Aware of the increasing risks of violence Trump spoke at the Ellipse, where he encouraged the crowd to “fight like Hell.” He told them that “this is a matter of national security,” and that when there is fraud “you’re allowed to go by very different rules.” He colluded with rally organizers to falsely tell law enforcement there would be no march on the Capitol while the rally organizers fully knew Trump intended to tell the mob to do exactly that.
There is the indisputable fact that the mob responded to that speech by marching on the Capitol. Within an hour of his speech the mob was breaching the Capitol and the Vice President and members of Congress were fleeing for their lives.
When Trump finally told the mob to go home, he praised them. That evening he praised them again as “great patriots,” suggested that their actions were justified and that Congress got what it deserved.
Based on such undisputed evidence, and more, the Colorado Supreme Court concluded:
“President Trump engaged in insurrection . . . the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power . . . President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection . . . Moreover, the record amply demonstrates that President Trump fully intended to — and did — aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.”
Was Trump’s Speech Protected By The First Amendment
Trump argued that all the speech cited against him in the above discussions was Constitutionally protected free speech. The Colorado Supreme Court noted this question is governed by the seminal 1969 United States Supreme Court case, Bradenburg v. Ohio. This decision, on the issue of inciting violence, sets a high bar for speech to not be protected by the First Amendment. To not be protected the speech must:
(1) explicitly or implicitly encouraged the use of violence or lawless action;
(2) the speaker must intend that the speech induce violence;
(3) imminent violence must be the likely result of the speech.
Unless all three of these elements are present a speech appearing to incite violence remains protected by the First Amendment. The speech at issue in the Brandenberg case was racist and incendiary in tone. The defendant was a Klan leader, who while uttering racist slurs, urged a march on the Capitol. Notably, the speech was given in Ohio, not at the Capitol, and no such march manifested. The Supreme Court found that “abstract advocacy” of violence was insufficient unless paired with the elements above.
The dispute centered on the second element, where it must be shown that Trump intended for his speech to result in violence. Trump argued that his Ellipse speech should be examined only within its own context, and not the greater context of his actions that included a history of supporting violence.
The Colorado Supreme Court disagreed. “When assessing whether someone means to threaten another with unlawful violence, we sometimes need to consider more than the behavior exhibited on one occasion.” Thus, the Colorado Supreme Court agreed that it was appropriate for the trial court to consider Trump’s “history of courting extremists and endorsing political violence as legitimate and proper, as well as his efforts to undermine the legitimacy of the 2020 election results and hinder the certification of the Electoral College results in Congress.”
The Colorado Supreme Court recounted the long history of Trump endorsing violence at his rallies and Trump’s speech resulting in threats of violence against election officials. The court noted that one such official, Garbriel Sterling of Georgia pleaded with Trump “‘stop inspiring people to commit potential acts of violence’ or ‘someone’s going to get killed.’”
All the incendiary language of Trump’s Ellipse speech was cited again. His calls to “fight like Hell,” his claim the crowd could go “by very different rules,” and more that was understood by the crowd to be a call to arms. The Colorado Supreme Court noted that the trial court was not the first to reach this conclusion. It cited the federal court for the District of Columbia which in Thompson v. Trump held that Trump:
“invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building . . . where those very politicians were at work to certify an election that he had lost.”
Of course Trump supporters always focus on the one brief moment in Trump’s speech where he told them, “to peacefully and patriotically make your voices heard.” The Colorado Supreme Court agreed with trial court that this “isolated reference” could not inoculate Trump against the nearly hour long incendiary language that followed it. The court deemed that isolated reference “insincere” and existing only “to obfuscate and create plausible deniability.”
Trump knew of the potential for violence among his supporters and with that knowledge charged them up. Trump’s endorsement of that violence, during the violence, and after the violence, further establishes that Trump intended the violence to happen.
Does Section 3 of the 14th Amendment Apply To the Presidency?
Now we get to where the Colorado Supreme Court disagreed with trial court. Because whether the Section 3 applies to the Presidency is a pure question of law the Colorado Supreme Court reviewed this question de novo, affording no deference to the trial court’s decision.
The Colorado Supreme Court did not find it the trial court’s giving weight to the Presidency not being mentioned in Section 3 stating, “most likely that the Presidency is not specifically included because it is so evidently an “office.’” Senators and members of Congress are listed because their positions are not considered an office under the Constitution.
The Colorado Supreme Court notes that viewing the Presidency as an office is consistent with common usage of the words, but also the Constitution itself which refers “to the Presidency as an ‘Office’ twenty-five times.”
This includes the impeachment clause which disqualifies an impeached and removed individual from any office under the United States. Under the approach advanced by the trial court and Trump, “anyone impeached — including a President — could nonetheless go on to serve as President.” Indeed the only job an impeached and removed President could have in our government would be that of President. “This reading is nonsensical,” the court quite fairly declared pointing out that in the impeachment of both Clinton and Trump it was understood that removal from office would bar them from ever being President again.
The legislative history of debates over Section 3’s language is also persuasive. At least one Senator, Reverdy Johnson, read the provision as the trial court and Trump suggest and rose to raise that concern. He complained that, by not including the President, Section 3 did not go far enough as it would allow rebels into the highest office of the land. Senator Morrill replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” For Johnson the lightbulb went on. Satisfied he responded, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am.” As the Colorado Supreme Court put it:
This colloquy further supports the view that the drafters of this Amendment intended the phrase “any office” to be broadly inclusive, and certainly to include the Presidency.
As contemporaneous debate over the 14th Amendment proceeded many defended it because they firmly believed it would bar Jefferson Davis from the Presidency. When blanket amnesty, to remove the disability, was proposed in Congress, to allow former Confederates to again serve, many opposed on grounds it would allow the likes of Jefferson Davis into the Presidency. Accordingly to blanket amnesty was constrained so as to not include high ranking officials in the Confederacy.
The Colorado Supreme Court concluded:
“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three.”
The Colorado Supreme Court’s Conclusion
“we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”
As discussed in more detail below, these effects are effectively stayed pending United States Supreme Court review and Trump’s name will almost certainly appear on the primary ballot.
The Dissenting Opinions
The three dissenting opinion are interesting as well, mostly for what they do not contain.
Chief Justice Boatright and Justice Berkenkotter dissented on rather esoteric questions of the unusual Colorado law that allowed voters to bring this action. In their view that law did not go so far as to allow voters to challenge a candidacy based on whether the candidate allegedly engaged in an insurrection.
Justice Samour dissented arguing that denying Trump access to the ballot without previously being convicted for insurrection denied him due process.
Notably not one of the justices dissented on grounds that there was not an insurrection or that Trump didn’t engage in an insurrection. Nor did they dissent on free speech grounds.
Some additional thoughts regarding the dissents. They provide little for the United States Supreme Court to reverse the majority decision. The dissents by Boatright and Berkenkotter are rooted in state law, presenting no federal question justiciable for the United States Supreme Court.
The decision of Samour does raise a federal question but is weak for a variety of reasons. First, it ignores that there was due process. As discussed above there was a five day trial on this in which witnesses were heard and cross examined. At the end of that trial the finder of fact determined there was clear and convincing evidence that Trump engaged in an insurrection. Samour offers no specifics as to why that determination was in error.
In addition, Section 3 barred thousands of Confederates from public office without any of them being charged anything, never mind convicted for insurrection. Samour’s interpretation defies the history of how Section 3 was applied contemporaneously to those who wrote it.
Onward To The Supreme Court
As mentioned above the decision barring Trump from the ballot is stayed until January 4th. However, if Trump even seeks United States Supreme Court review before then (and he has said he will) then the stay continues until the Supreme Court resolves the question. Because the Colorado Secretary of State must certify the content of the primary ballot by January 5th that means that Trump will appear on the primary ballot simply by filing his appeal with the Supreme Court. The question of including Trump on the Presidential ballot in November would presumably be resolved by the Supreme Court.
Of course, it is theoretically possible that the Supreme Court could decline to hear Trump’s appeal, however, I think that exceptionally unlikely. The issue is of massive importance and the Supreme Court would rightfully seek to avoid the spectacle of some states excluding Trump and some states not doing so.
Presuming the Supreme Court does take the case I will not hazard a guess as to how they rule. While stocked with Trump appointees, and Clarence Thomas as an ardent loyalist, The Supreme Court has shown little sympathy to date for Trump’s claims of election fraud or the events of January 6th. As discussed above the dissents of the Colorado Supreme Court offer scant basis for the United States Supreme Court to reverse the majority decision.
It should be noted that appealing to the Supreme Court is not risk free for Trump. If he doesn’t appeal he is barred, so far, only in Colorado where he was unlikely to win anyway. A few other states might follow suit, but he’d be unlikely to win in those too. However, if Trump appeals to the Supreme Court and losses, if the Supreme Court determines he engaged in an insurrection and is barred from the Presidency, he is off the ballot in all 50 states.
If the Supreme Court does reverse the Colorado Supreme Court it will more likely be for one of these reasons:
- The Supreme Court endorses the Colorado trial court’s determination that Section 3 does not apply the Presidency or the oath the President takes.
- The Supreme Court finds it was not an insurrection, a result I think unlikely.
- The Supreme Court finds Trump’s actions did not quite rise to the level of engaging in the insurrection.
- The Supreme Court finds Trump was protected by the First Amendment under the Brandenberg standard.
I would say that a some point a Republican Party, more sober than the current one, should wake up and realize that Donald Trump is not worth the trouble and uncertainty all this creates. However, the personality cult is so strongly ingrained in the party by now that there is virtually no chance that happens.