Colorado Court Rules Trump Engaged in Insurrection, but Cannot Be Disqualified Under Section Three

 

Yesterday, a Colorado trial court ruled that Donald Trump engaged in insurrection, but still cannot be disqualified under Section 3 of the Fourteenth Amendment, because the president is not an “officer of the United States.” The Court thereby rejected relatively more plausible arguments against disqualifying Trump, but accepted a very weak one.

Section 3 states that “No person” can hold any state or federal office if they had previously been “a member of Congress, or… an officer of the United States” or a state official, and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” To my mind, the most difficult issue raised by Trump’s effort to stay in power after losing the 2020 election is whether his conduct amounted to “engaging in insurrection” or giving aid and comfort to the enemies of the United States. By contrast, I think it’s pretty obvious that the president qualifies as an officer of the United States. It would be utterly ridiculous if  Section 3 disqualifies an insurrectionist low-level bureaucrat, but not an insurrectionist who holds the most powerful office in the land. For obvious reasons, the latter is a vastly greater menace than the former.

Judge Sarah Wallace nonetheless managed to somehow rule against Trump on his best argument, while ruling for him on his worst.

I think it’s pretty obvious that the January 6 attack on the Capitol qualifies as an “insurrection.” After all, the attackers were trying to use force to block the transfer of power to the rightful winner of a presidential election. Whether Donald Trump was closely enough connected to these events is a closer question. After all, he didn’t personally storm the Capitol himself, and his statements before the attack can be interpreted in different ways. It is also debatable whether his earlier efforts to illegally overturn the election results qualify as engaging in insurrection or giving “aid and comfort” to those who did.

In a detailed and compelling analysis Judge Wallace explains why Trump’s actions on and before January 6 do qualify as engaging in insurrection, and are not protected by the First Amendment. Among other things, she shows that Trump’s exhortations to the mob to “fight like hell” are best interpreted as literal incitements to violence, rather than merely figurative hyperbole—especially in context of his longstanding advocacy and defense of political violence by his supporters:

The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being “stolen,” and that something needed to be done….

Knowing of the potential for violence, and having actively primed the anger of his extremist supporters, Trump called for strength and action on January 6, 2021, posturing the rightful certification of President Biden’s electoral victory as “the most corrupt election in the history, maybe of the world” and as a “matter of national security,” telling his supporters that they were allowed to go by “very different rules” and that if they didn’t “fight like hell, [they’re] not going to have a country anymore.” Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder…

Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and lea