Law Matters

Colorado’s Supreme Court released a whopping, 213 paged opinion disqualifying former President Trump from appearing on the state’s Republican presidential primary ballot. This ruling sent the public, as well as the legal community, into a blur. Some lauded the court’s decision as an effort to hold the former president accountable for his actions on January 6^th, 2021; others decried the ruling as a political move attacking democracy.

That said, this ruling is unique; Colorado’s Supreme Court is the first in the nation to conclude that President Trump is disqualified from holding office again because of Section Three of the Fourteenth Amendment.

The court’s decision raised many questions, including: (1) what does the Fourteenth Amendment say; (2) does Section Three apply to the president; (3) did Trump’s actions on January 6 amount to an “insurrection”; and (4) if so, did Trump engage in the insurrection?

Colorado’s highest court examined many more issues (I mean, the opinion’s 213 pages), but these questions above are core to the court’s analysis.

A. Section Three of the Fourteenth Amendment

1. Section 3 provides: No person shall . . . . hold any office . . . . under the United States 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.
2. In short, if one has held an office of the U.S. or any state, and has engaged or aided in an insurrection of the U.S., then that person is disqualified from taking office again. Think for yourself whether you think this section applies to a former president, and whether President Trump aided or engaged in an insurrection.

B. Section Three Applies to the President

1. Having determined that it could hear the case, the court examined whether Section Three applies to the president. The court reasoned that Section Three only applies to Trump if (1) the Presidency is an “office . . . . under the U.S.”; (2) the President is an “officer of the U.S.”; and (3) the presidential oath constitutes an oath “to support the Constitution of the United States.”
2. First, the court determined that the Presidency is indeed an office of the U.S. because: (1) even though it is not listed in Section Three, it is so evidently an “office”; and (2) the Presidency is an officer “under the U.S.” because to hold otherwise goes against the idea that all government officials, including the president, serve “we the people.”
3. Second, the court concluded that the president is an officer of the U.S. because: (1) ordinary usage of the term “officer” includes the president; (2) Section Three’s drafters understood the president as an officer of the U.S.; (3) the structure of Section Three is formatted in a way persuading the court that the president is an office of the U.S.; and (4) Section Three’s purpose is to ensure that “disloyal officers” could never hold office again.
4. Third, the presidential oath is an oath to support the Constitution because the language of the presidential oath mirrors Section Three’s “oath . . . . to support the Constitution . . . .”

C. President Trump Engaged in an Insurrection.

1. The court concluded that former President Trump engaged in an insurrection on January 6, 2021.
2. First, the court established the definition of insurrection: “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking actions necessary to accomplish the peaceful transfer of power.”
3. Second, the court concluded that the events of January 6 constituted an insurrection because: (1) it is undisputed that a large group of people forcibly entered the Capitol; (2) the mob was armed with deadly weapons and attacked law enforcement “in a matter consistent with a violent insurrection”; (3) the mob’s use of force was concerted and public, making clear through chants that they were seeking to inflict violence on members of Congress and Vice President Pence; and (4) the mob’s unified goal was to hinder Congress from counting the electoral votes as required by the Twelfth Amendment to certify the 2020 presidential election.
4. Finally, the court said that the President Trump “engaged in” the insurrection because: (1) President Trump laid the groundwork for a claim that the election was rigged much before the general election; (2) despite substantial evidence from his advisors that he lost the election, Trump kept claiming that the election was stolen from him and spurred his supporters by holding “Stop the Steal” rallies leading to January 6; and (3) Trump urged his supporters to travel to D.C. on January 6 and falsely emphasized to them that it was “statistically impossible to have lost the 2020 Election.” Thus, Trump engaged in an insurrection.

Why it matters

Cornel West, a third-party candidate for president, warned his followers to be weary of Colorado’s decision. He fears that it might establish a precedent for courts to determine elections rather than the people. Like many Republican criticisms of the decision, West focuses on the potential attack on democracy that this ruling imposes. These concerns have some merit. Whether you like Trump or not (I will say, I hate him), millions of Colorado voters, if the decision holds/isn’t overturned by SCOTUS, will be unable to vote for him.

At the same time, many others, including the Colorado Supreme Court, believe that Trump violated the Constitution and in fact betrayed the country by engaging in an insurrection. Shouldn’t Trump, who held the highest office in the land, be held accountable for such actions? Indeed, Colorado’s ruling may be one that shows that the Constitution still matters: the Fourteenth Amendment explicitly prohibits people who’ve taken an oath to uphold the Constitution and then participated in an insurrection against the United States from holding elected or appointed office.

What are your thoughts on Colorado’s decision? Are you concerned that it attacks democracy, or was the court simply following and applying the law?