A judge in Colorado has ruled that former President Donald Trump engaged in insurrection during the January 6th attack on the U.S. Capitol. However, the judge rejected an effort to keep him off the state’s primary ballot because it remains unclear whether a Civil War-era Constitutional amendment barring insurrectionists from public office applies to the presidency.
The lawsuit, filed by a left-leaning group on behalf of a group of Republican and independent Colorado voters, argued that Trump’s actions violated a clause in the 14th Amendment which prevents anyone who “engaged in insurrection or rebellion” against the Constitution from holding office.
District Judge Sarah B. Wallace’s decision is the third ruling in just over a week against lawsuits attempting to remove Trump from the ballot by using Section 3 of the amendment. Last week, the Minnesota Supreme Court allowed Trump to remain on the primary ballot, stating that political parties have the sole choice of who appears. A Michigan judge also ruled that Congress is the appropriate forum for deciding whether Section 3 applies to Trump.
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In her ruling, Judge Wallace stated that Trump did indeed engage in insurrection on January 6th and dismissed his attorneys’ argument that he was merely exercising his free speech rights. She acknowledged that this would typically disqualify him under Section 3, but she could not do so for a presidential candidate as the clause does not specifically mention the presidency. Instead, it refers to “elector of President and Vice President,” as well as civil and military offices.
The judge explained in her 102-page ruling, “Part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three.” Trump campaign spokesman Steven Cheung called the ruling “another nail in the coffin of the un-American ballot challenges” and described the lawsuits as “cynical and blatant political attempts to interfere with the upcoming presidential election by desperate Democrats.”
The group Citizens for Responsibility and Ethics in Washington, who filed the case, announced that they would appeal to the Colorado Supreme Court. Attorney Mario Nicolais, representing the voters who brought the lawsuit, stated, “The Court found that Donald Trump engaged in insurrection after a careful and thorough review of the evidence. We are very pleased with the opinion and look forward to addressing the sole legal issue on appeal, namely whether Section 3 of the 14th Amendment applies to insurrectionist presidents.”
It is expected that eventually, the question of whether Section 3 applies to Trump will reach the U.S. Supreme Court, as it has never ruled on the matter. Free Speech for People, the group filing the Michigan case, recently filed an appeal in state court. Legal experts found it significant that Judge Wallace determined that Trump had engaged in insurrection, based on his alleged incitement of the attack.
Derek Muller, a law professor from Notre Dame, commented, “It’s a stunning holding for a court to conclude that a former president engaged in insurrection against the United States. And there’s a good chance that, on appeal, a court bars him from the ballot.” Trump has referred to attempts to remove him from the ballot as “election interference” funded by Democratic groups. His attorneys argued in court that Trump was exercising his First Amendment rights on January 6th, denying that he incited insurrection, and claiming that Section 3 was not meant to apply to presidential candidates.
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The petitioners argued there is little ambiguity in Section 3, which historically prevented former Confederates from taking office after the Civil War. It bars those who swore an oath to uphold the Constitution and then “engaged in insurrection or rebellion against the same” from holding state or federal office, unless granted amnesty by a two-thirds vote of Congress. During the hearing, a law professor testified that it was widely understood that Section 3 would prevent Jefferson Davis, former president of the Confederacy, from becoming president of the United States.
Legal historians have noted that Section 3 was rarely used after Congress granted amnesty to most former Confederates in 1872. However, it came into focus again following the attack on the Capitol, which aimed to disrupt Congress’ certification of Joe Biden’s victory. The recent cases against Trump have sparked renewed interest in this long-ignored provision, which had not gained much attention until after January 6th.