Colorado judge finds Trump engaged in insurrection, but rejects constitutional ballot challenge

DENVER — A Colorado judge ruled Friday that former President Donald Trump engaged in an insurrection during the Jan. 6, 2021 attack on the Capitol, but rejected an effort to keep him off the state’s primary ballot because it is unclear whether a civil war constitutional amendment from civil war The exclusion of insurgents from public office applies to the presidency.

The lawsuit, filed by a left-wing group on behalf of a group of Republican and independent voters in Colorado, alleged that Trump’s actions regarding the attack violated a clause in the 14th Amendment that prohibits anyone from holding a position that “involves in the event of an uprising.” or rebellion” against the Constitution.

The decision by District Judge Sarah B. Wallace is the third ruling in just over a week against lawsuits seeking to remove Trump from the ballot by citing Section 3 of the amendment. The Minnesota Supreme Court said last week that Trump could remain on the primary ballot because political parties have the only choice over who appears, while a Michigan judge ruled that Congress is the proper forum to decide whether Section 3 applies to Trump is.

In her decision, Wallace said she found that Trump did “participate in an insurrection” on January 6 and rejected his lawyers’ arguments that he was simply engaging in free speech. Normally that would be enough to disqualify him under Article 3, but she said she couldn’t do that for a presidential candidate.

Section 3 does not specifically refer to the presidency, as it does with members of the U.S. Senate or House of Representatives. Instead, the clause refers to “elector of president and vice president,” along with civilian and military offices.

“Part of the Court’s decision is its reluctance to embrace an interpretation that would disqualify a presidential candidate without a clear, unmistakable indication that this is the intent of Section Three,” the judge wrote in the 102-page ruling.

Trump campaign spokesman Steven Cheung called the ruling “another nail in the coffin of the un-American voting challenges.”

“These cases represent the most cynical and blatant political attempts to meddle in the upcoming presidential elections by desperate Democrats,” Cheung said in a statement.

Citizens for Responsibility and Ethics in Washington, the group that brought the case, said they would appeal to the Colorado Supreme Court.

“The Court found that Donald Trump was guilty of insurrection after a careful and thorough review of the evidence,” said attorney Mario Nicolais, who represented the voters who filed the lawsuit. “We are very pleased with the opinion and look forward to addressing on appeal the sole legal issue of whether Section 3 of the 14th Amendment applies to insurgent presidents.”

Whether it’s the Colorado case or a case brought in another state, the question will likely ultimately end up before the U.S. Supreme Court, which has never ruled on Section 3. The group that brought the Michigan case charges, Free Speech for People, appealed Thursday to state court.

Legal experts said it was significant that Wallace discovered Trump was involved in an insurrection. She wrote that she agreed with the petitioners’ claim that he “instigated” the attack.

“It is mind-boggling for a court to conclude that a former president was involved in an insurrection against the United States,” said Derek Muller, a law professor at Notre Dame who has closely followed the case. “And there is a good chance that a court will exclude him from the vote on appeal.”

Trump has called out the effort to eliminate “election interference” funded by “dark money” Democratic groups. His lawyers argued in court that Trump was simply exercising his First Amendment rights on January 6, that he did not incite an insurrection and that Section 3 had never applied to presidential candidates.

They also argued that no judge should terminate a candidacy based on an interpretation of a clause that has been used only a handful of times in 150 years.

“The petitioners are asking this court to do something that has never been done in the history of the United States,” Trump attorney Scott Gessler said during closing arguments. “The evidence does not come close to allowing the court to do this.”

The petitioners argued that there is little ambiguity in Section 3, which was mainly used before January 6 to prevent former Confederates from taking control of the government after the Civil War. It prohibits those who have sworn an oath to uphold the Constitution and subsequently engaged in “insurrection or rebellion against it” from holding state or federal office unless amnesty is granted by a two-thirds majority of Congress.

During a weeklong hearing earlier this month, they called a law professor who testified that it was widely believed the clause prevented former Confederates from becoming president. He also showed post-Civil War documents showing that even an act like purchasing Confederate war bonds could make someone unfit for office.

The lawyers seeking to keep Trump off the ballot argued that he was simply disqualified, as clearly as if he had not met the 35-year age limit for office. The fact that this had never happened before, they said, was a reflection on Trump and his actions.

Legal historians say Section 3 fell into disuse after Congress granted amnesty for its provisions to most former Confederates in 1872. It was revived after the attack on the Capitol, which was intended to stop Congress’ certification of Democrat Joe Biden’s victory.

The case revolved around 150-year-old documents from the 14th Amendment debate. Wallace said there is “little direct evidence” that the measure was intended to apply to the presidency. She noted that Trump’s lawyers noted a law professor’s finding that an early draft specified the presidency and vice presidency, but the final draft did not. The provision also refers to “officers of the United States,” a phrase that does not include the two highest offices elsewhere in the Constitution.

But the petitioners’ legal historian testified that in the years after the Civil War, it was widely believed that Section 3 would prevent Jefferson Davis, the former president of the Confederacy, from being elected president of the United States. He also dug up data from the debate in which a senator asked whether the measure applied to the presidency and an author read the language of “officers of the United States.” The senator who asked the question was then convinced that the president was indeed covered, according to the testimony.

“The record shows significant tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources,” Wallace wrote.

The recent cases against Trump mark a new wave of interest in the long-ignored provision, which only began to receive attention after January 6.

The group that filed the protests in Minnesota and Michigan, Free Speech For People, also sought to remove Republican Reps. Madison Cawthorn and Marjorie Taylor Greene from the 2022 ballot by citing Section 3. Cawthorn’s case came into question when he lost his primary, and a judge ruled against the lawsuit to oust Greene.

CREW successfully used Section 3 to remove a rural New Mexico County commissioner who entered the Capitol on January 6 and was later convicted of a crime.