Breaking: “Colorado judge rules Trump ‘engaged in an insurrection’ — but can still run for president”; Thoughts on What It Means and What’s Next


A Colorado judge has turned away a challenge looking to disqualify former President Donald Trump from running for president under an interpretation of the 14th Amendment that argued he engaged in insurrection against the United States on Jan. 6, 2021.

The ruling came in a case brought by progressive activists who sued the state, arguing that Trump was barred from returning to the office. A handful of courts in other states turned away similar challenges….

The judge found that Trump did engage in an insurrection on January 6, 2021 “through incitement, and that the First Amendment does not protect Trump’s speech.” But she also found that Section 3 of the 14th Amendment doesn’t apply to Trump.

“The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification,” she wrote.

You can find the 102-page ruling at this link. Here’s the key legal conclusion:

Here, after considering the arguments on both sides, the Court is persuaded that “officers of the United States” did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, 19 it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath. 20T o be clear, 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. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources. As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

A few thoughts.

First, it is significant that a court has made a legal determination that Trump engaged in insurrection and that his conduct was not protected by the First Amendment because it constituted incitement. Aside from Judge Carter’s rulings in the John Eastman matters, there have been few opportunities for courts to weigh in so for on Trump’s conduct. This is significant in and of its own right, regardless of the disqualification issue. It could well be that on appeal the Colorado Supreme Court will agree. This will have political implications, if not legal ones, down the line.

Second, the Colorado ruling is on a pure point of law, about whether Section 3 of the 14th amendment applies to the presidency. That’s a kind of tailor made legal issue for the U.S. Supreme Court to resolve. But I don’t expect the Court to get involved unless and until there’s a ruling actually removing Trump from the ballot. As I’ve argued in The Atlantic, the sooner there’s a definitive ruling on whether Trump is eligible to run in 2024 the better from the point of view of the stability of American democracy.

Third, I’m convinced more than ever that the 2024 election will be more a referendum on Trump than Biden, which is odd when you think about the position of the incumbent.

More to come.

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