I spent a fair amount of time working out my thoughts on this case and decided I might as well share them. There is certainly more than one reasonable
position and possible conclusion about this case. This is mine.
This post explains why I believe the Colorado Decision should be
upheld. My conclusions are based on my
reading of the facts and the law relevant to this case and not on my personal
feelings about political personalities or stances or any political motives that
may underlie this case. Clearly, I am
not a Supreme Court Justice, a sociologist, or a politician, but in my opinion
the Colorado opinion should be affirmed and hopefully the Supreme Court of the
United States will do so unanimously.
To keep this post to a reasonable length, I explain many of the
underlying legal concepts somewhat simplistically. I think that this case is deeply important to
our country and our Representative Democracy form of government. I am saddened that events of the past few
years have brought us to this point, and I hope that the Justices will be able
to be appropriately blind to public opinion as they analyze the Constitution
and this case. I also hope that the
public will take time to fully understand this case, our form of government,
and the Court’s role in it so that they are able to accept the Court’s decision
even if not agreeing with it.
A Brief Summary of the Colorado Case
In 2023, Colorado electors filed a petition against the Colorado
Secretary of State seeking to have Trump’s name removed from the primary ballot
in Colorado. The Colorado Court promptly
set the matter for a five-day trial.
Following that trial which included presentation of evidence along with
proposed findings of fact and conclusions of law by all the parties including former
president Trump, the District Court concluded that Trump had engaged in insurrection,
but that Section Three of the Fourteenth Amendment did not apply to a
president. Both the Electors and Trump
appealed to the Colorado Supreme Court.
Appeals usually address not the facts themselves which have been determined
by the lower court, but the law and its interpretation and application to those
decided facts. That is, was the law
correctly interpreted and did or did not the facts fit the requirements of that
law so as to support the decision reached by the lower court?
The Colorado Supreme Court affirmed the lower Court’s factual
conclusions that Trump had engaged in insurrection, but reversed its conclusion
that Section Three does not apply to presidents. It also revisited and addressed several other
relevant issues. Ultimately the Court
held that because Donald Trump is disqualified under Section Three of the !4th
Amendment, it would be a wrongful act under Colorado State’s Election Code for
the Secretary of State to list him as a candidate on the presidential primary
ballot.
The U.S. Supreme Court will now hear an appeal of the Colorado
decision on February 8 of this year.
A note on Courts’ Roles
Before examining the issues in this case, a note on the role of
evidence in trial and on appeal is appropriate. At the trial level the evidence is presented
and the finder of fact determines what facts that evidence supports. The finder of fact is either a jury or, in a
case where there is no jury then it is decided by the judge or other authority
who presides over the case. There are
many reasons why there may or may not be a jury in a particular case; sometimes
the nature of the case does not provide for a jury, sometimes a party chooses
not to request a jury.
Once the findings of fact are rendered, the trial court will apply
relevant law to those facts and render a decision. Unless there is absolutely no evidence to
support those facts, those facts will not be reversed by an appellate
court. Rather it is the appellate
court’s responsibility to ensure that the correct law was correctly interpreted
and correctly applied to those facts.
That is, there is not a factual hearing at the appellate level. If the appellate court finds that there is a
problem with the findings of fact, it will remand the case to the lower court
for a further hearing. If the law was
incorrectly interpreted or incorrectly applied, the result might be a reversal,
or it might be a remand to the trial court for reconsideration of the facts in
light of the corrected understanding of the law.
Section Three of the Fourteenth Amendment
Section 3 states in full:
No person shall be a Senator or Representative
in Congress, or elector of President and Vice-President, or hold any office,
civil or military, under the United States, or under any State, 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. But Congress may by a vote of
two-thirds of each House, remove such disability.
There are 3 key concepts in this section that must be
clarified: First does it apply to
presidents, second, what constitutes “insurrection or rebellion”, and third,
what does it mean to “engage in”?
Generally, when interpreting Constitutional provisions, the Court’s
goal is to effectuate the intent of the drafters. It will begin by looking at the plain
language, giving terms their ordinary and popular meanings. If, however, there is more than one
reasonable interpretation, then, due to the ambiguity, the Court may consider
textural, structural, and historical evidence.
Application
of Section Three to Presidents
This section applies to anyone who is an officer of the United
States who has taken an oath to support the Constitution of the United States. It prohibits such person from holding office
if they have engaged in insurrection or rebellion against the United States.
The presidency is an office within the United States government
and the person who holds that office is an officer of that government. Plain dictionary meaning as well as prior
case law makes this clear. Moreover, the
Presidential Oath is an oath to support the Constitution as mandated by the
Constitution itself. This section then
applies to presidents.
What
is an “Insurrection”?
After an examination of various definitions of this word both past
and present (beginning with 1860) as well as examining relevant precedent, the
Colorado Supreme Court stated:
Although we acknowledge that these definitions
vary and some are arguably broader than others, for purposes of deciding this
case, we need not adopt a single, all-encompassing definition of the word
“insurrection.” Rather, it suffices for us to conclude that any definition of
“insurrection” for purposes of Section Three would encompass 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 the actions necessary to accomplish a
peaceful transfer of power in this country. (Opinion p. 99).
This definition comports with current dictionary definitions of insurrection: “an act or instance of revolting against
civil authority or an established government” (Merriam-Webster); “an act or
instance of rising in revolt, rebellion, or resistance against civil authority
or an established govern” (dictionary.com); “a violent uprising against an
authority or government” (Google dictionary); “an uprising against a larger
force that's in power” (Vocabulary.com); “an organized and usually violent act
of revolt or rebellion against an established government or governing authority
of a nation-state or other political entity by a group of its citizens or
subjects; also, any act of engaging in such a revolt.” (Britannica).
While the definition has not been addressed specifically in the
context of Section Three, in other legal contexts courts and legal scholars
generally interpret the term "insurrection" as a violent uprising or
organized resistance against the government or its regulations.
The actions of January 6 were an attempt to interfere with a
government action in progress, specifically the counting of electoral votes and
the transfer of presidential power. There
is really no question that was the intent of the January 6 protesters. Their intent was to stop Vice President Pence
from certifying Biden as the next President of the United States.
It is this attempt to interfere with this government action that
distinguishes the January 6 events from riots or general protests that become
violent but are not directed at hindering a specific governmental act,
especially one in progress. Even vocal and
perhaps violent protesting outside a courthouse or governing body, while it may
be an attempt to persuade officials, is not an attempt to actually halt
governmental action in progress.
“Engaged
in”
Again, the Colorado Supreme Court conducts a thorough examination
of relevant law and general definitions from 1860 forward. It ultimately concludes that “engaged in” requires
“an overt and voluntary act, done with the intent of
aiding or furthering the common unlawful purpose.” (Opinion p. 105). The Court further clarifies, “we do not read
“engaged in” so broadly as to subsume mere silence in the face of insurrection
or mere acquiescence therein, at least absent an affirmative duty to act.
Rather, . . . . [t]he force of the term to engage carries the idea of active
rather than passive conduct, and of voluntary rather than compulsory action.” (Opinion
p. 105).
Note that per this definition, “engage in” does not necessarily
require marching with the protesters.
Rather, it could consist of other acts that support or encourage those
physically conducting the insurrection.
Donald Trump Engaged in Insurrection
Given the above definitions, we must look at the evidence to see
if it supports the conclusion that Donald Trump engaged in insurrection. I agree with the Colorado Supreme Court that
it does. We should note, however, that
if the U.S. Supreme Court redefines the above terms, then their appropriate
action would be to remand the case to Colorado for reconsideration of the facts
using the revised terms.
I think it is fairly clear that the events of January 6
constituted an insurrection. The key
question then is: Did Donald Trump engage in that insurrection?
In this case, the Colorado Court thoroughly went through the evidentiary
record from the Trial Court. It noted
that much of the evidence against Trump went unopposed by him. Basically, the evidence supportive of
finding that Trump engaged in insurrection falls into three piles. First is the behavior of Trump leading up to
the 2020 election in which he laid the groundwork for a claim that the election
would be “rigged.”
Second is the evidence
pertaining to the time between the election and January 6 when Trump “ramped
up” his claims that the election was stolen from him. He continued to allege election fraud and
propelled the “Stop the Steal” movement of cross-country rallies leading up to
January 6. A rally in November turned
violent; Trump acknowledged the violence but justified it as “self-defense.” He referred to stealing the election as an
“act of war” which his supporters must fight against. The rhetoric became more and more aggressive
as January 6 approached. The Court found
that the evidence “established that President Trump’s messages were a call to
his supporters to fight and that his supporters responded to that call.”
(Opinion p. 109). I would further note
that this rhetoric goes beyond legal means which Trump could and did pursue in
courts of law regarding challenges to election counts.
The third bundle of evidence comes from January 6 itself. It includes Trump’s speech to his supporters at
the Capital. Trump issued a number of
calls to “fight”, to “take back our country”, to not be “weak”, to “show
strength” and “be strong”, to “fight like hell.” He told his supporters that without
“fighting like hell” they were “not going to have a country anymore.” When he was informed that the Capitol was
under attack Trump took no action for about an hour, and then sent out a tweet,
read by bullhorn to his supporters, attacking V.P. Pence. This escalated the violence. Sometime after that, he finally tweeted
and encouraged the mob to “remain peaceful” (which at the time they were not), but
he did not condemn the violence, nor did he ask the mob to disperse. Finally, about another hour later, Trump sent
a video asking the mob to “go home now” and told them he loved them and that
they were “very special”. He then
repeated his claim that the election had been stolen, thus endorsing the mob’s
effort to try to stop the peaceful transfer of power.
The court concluded that the evidence (which the opinion presents
in far more detail than I have summarized here) established that Trump engaged
in insurrection. It also noted that the
bulk of the evidence was undisputed by Trump at trial.
I agree that this evidence is sufficient to support a finding that
Trump engaged in insurrection. It meets
the requirement of “an overt and voluntary act, done with the intent of aiding
or furthering the common unlawful purpose” of interfering in a governmental
process. He repeatedly riled up his supporters
and should have known not only that the January 6 rally could, but that it
probably would, get out of hand. His
purpose was to stop the government from accomplishing a peaceful transfer of
power; indeed, it was to stop any transfer of power, seemingly by any means
necessary.
However, deciding that Trump engaged in insurrection is not the
end of the discussion. There are several
issues that are or may be the subject of dispute in this case before it can be
ultimately concluded that Trump’s name should be withheld from the ballot under
Section Three of the Fourteenth Amendment.
Can a State Court decide this issue?
State legislatures create election codes and statutes governing
elections in their states. In Colorado,
the state courts have the authority to assess precedential qualifications. Hence this case was properly filed in a
Colorado state court. The State Supreme
Court further noted that the trial court properly followed the procedures and
requirements of the Colorado statute.
More generally as to a state’s authority to address Constitutional
issues, the Constitution itself delegates to the states the authority to
prescribe the “Times, Places and Manner” of holding elections. U.S. Supreme Court precedent tells us that “States
exercise these powers through comprehensive and sometimes complex election
codes, regulating the registration and qualifications of voters, the selection
and eligibility of candidates, and the voting process itself. . . . These
powers are uncontroversial and well-explored in U.S. Supreme Court case law.”
(Colorado opinion p. 30).
Under
Article II of the Constitution, states are authorized to appoint presidential
electors in such manner as their legislatures may direct. The Supreme Court has stated in precedent
that “So long as a state’s exercise of its
appointment power does not run afoul of another constitutional constraint, that
power is plenary.” States clearly have the power to assess the
qualifications of a presidential candidate.
Then Court of Appeals Judge Gorsuch recognized that it is “a state’s
legitimate interest in protecting the integrity and practical functioning of
the political process” that “permits it to exclude from the ballot candidates
who are constitutionally prohibited from assuming office.” (495 F. App’x at 948).
An example
of states’ authority over elections and electors in a different but current
context is seen in New Mexico where the Attorney General there has explained
that unlike in other states, New Mexico’s “five Republican electors cannot be
prosecuted under the current law for filing election certificates that falsely
declared Donald Trump the winner of the 2020 presidential race.” Indeed, he is now seeking modification of the
state’s law to allow this in the future.
The fact that various state statutes allow this while others do not is
an example of the fact that states can have and do have significant control
over elections and electors in their own state.
Colorado
law allows the State Court to decide the issue of whether Trump can appear on
the primary ballot and that Court properly followed its state’s laws in
arriving at that conclusion.
It should
be noted that the dissenting opinions in the Colorado Supreme Court case seem
most troubled by whether the Colorado law indeed allows the State Court to make
this decision or whether the law is more limited in scope. I am not familiar with the intricacies or
detailed precedent of Colorado law, but it seems that this might be the most
likely way that the Colorado decision could be attacked. If the U.S. Supreme Court were to decide that
the Colorado courts acted beyond their powers and were thus without
jurisdiction to hear and decide the case, then the U.S. Supreme Court could
dismiss the case entirely and avoid addressing the Constitutional issues.
Adequate
Due Process
The
Fourteenth Amendment’s Due Process Clause states that no State “shall deprive
any person of life, liberty, or property, without due process of law.” Due process simply requires that before a
person can be deprived of certain rights, they must be given notice and an
opportunity to be heard.
In this
instance Trump was given notice of the case and indeed participated in it by
filing various documents and other information.
He had the opportunity to present evidence during the hearing but, as
the Colorado Court noted, most of the evidence about the insurrection and
Trump’s participation in it went unopposed by Trump. Rather he focused more on legal arguments
attempting to prevent the Colorado court from hearing or deciding the case.
There has
been no due process violation, unless, as noted above, there is some defect in
the Colorado laws. It is clear that
Trump was given notice and opportunity to be heard. However, if the Colorado court hearing the
case had no jurisdiction, then there was no due process.
Section
Three does not require Implementing Legislation.
There is
an argument that Section Three cannot be enforced without legislation from
Congress that implements that Section; that is, the argument is that Section Three
cannot be “self-executing.” This is
simply ridiculous.
First, we
do not need legislation to tell us we can enforce the Constitution of the
United States.
Secondly,
the authors of Constitutional provisions and amendments know how to suggest
such additional legislation when necessary.
The 13th Amendment in Section One abolishes slavery. It then, in Section Two, provides that
“Congress shall have power to enforce this article by appropriate
legislation.” Note that this does not
require such legislation but allows enforcement by Congress through appropriate
legislation. Even with this authorizing
section, the Supreme Court in the Civil Rights Cases recognized that “legislation
may be necessary and proper to meet all the various cases and circumstances to
be affected by it,” but that “[b]y its own unaided force it abolished slavery”
and was “undoubtedly self-executing without any ancillary legislation.” The Court has also explicitly confirmed that
the 15th Amendment (again a part of the Reconstruction amendments) is
self-executing. There is no reason to think that this does not hold true for
the 14th Amendment as well.
Moreover, Section Three itself reveals that its authors were cognizant
of what role they wanted Congress to play.
Its final sentence reads, “But Congress may by a vote of two-thirds of
each House, remove such disability.” It
gave Congress this specific power, and had the authors wanted Congress to be
required to create enabling legislation as well, they would have so
stated. The fact that Congress is given
this power while no mention is made of enabling legislation certainly signifies
that there could be decisions of disqualification without Congressional action
and that such decisions were valid unless and until overturned by Congress.
Disqualification under Section Three does not require Criminal
Charge or Conviction.
Federal statute 18 USC §2383 makes it a crime to assist or engage
in rebellion or insurrection. While of
course conviction under this statute would also disqualify a person under
Section Three, there is no requirement in either the statute or Section Three
that such conviction or even a charge under the statute is a requirement for
disqualification under Section Three. In
any potential criminal case there are many reasons for not pursuing criminal
charges. Because a prosecuting attorney decides
not to pursue a criminal charge should not be seen as a way in which to negate
the clear language of the Constitution.
The People
cannot ignore Constitutional law.
The
argument that instead of a court deciding ballot qualification the people
should decide, that any name should be allowed and people should simply decide
the issue by voting, goes blatantly against our form of government, which is a
Representative Democracy. Ours is not a Pure
Democracy, which would effectively be rule by mob.
Yes, the
vote is sacred, and it is one way in which the people’s voice is heard. It is the process by which we select those
who will represent us. And those
representatives effectuate our rule of law that does not allow us to do
whatever we want. Here, the Constitution
allows our representatives in our state governments to carry out decisions
regarding ballot qualification. Ignoring that, simply saying we can vote for
whomever, constitutionally qualified or not, is an effective way to ignore if
not cancel our very Constitution, something which many of those urging reversal
of Colorado’s decision claim to hold if not sacred at least in high esteem.
Moreover, simply following the Constitution will not create, as some people fear, a new political tool to use with abandon against opponents. Our Rule of Law will always require evidence, due process, etc., which protect against such fears. This is a fact specific case and will not open the floodgates for Constitutional abuse.
The
Constitution provides qualifications and, in Section Three, has provided for
disqualification. The people cannot
simply ignore or rewrite the provisions of the Constitution by their vote for
someone who, under due process of law, had been found not to be qualified.
Was
President Trump’s January 6 speech protected by the First Amendment?
Trump
argues that his January 6 speech was protected and therefore cannot be used to
justify his disqualification. I think
this argument must fail.
First, the
right of free speech is always not absolute under all circumstances. Speech
that incites lawless action is not protected.
In looking at context, the Colorado
Court held that it was appropriate for the district court to consider President
Trump’s “history of courting extremists and endorsing political violence as
legitimate and proper, as well as his efforts to undermine the legitimacy of
the 2020 election results and hinder the certification of the Electoral College
results in Congress.” (Opinion. p. 123).
As to incitement, that was addressed above in discussing the evidence
relevant to “engage in.” The trial court
identified specific incendiary language in the January 6 speech.
Further,
the speech meets the requirements that must be met for the speech to not be
protected: it demonstrates intent to produce lawless or violent action and of
being likely to do so. The District Court
concluded that President Trump exhibited the requisite intent here. It found
that, before the January 6 rally, “[President] Trump knew that his supporters
were angry and prepared to use violence to ‘stop the steal’ including
physically preventing Vice President Pence from certifying the election,” and
that President Trump’s response to the events following his speech “support . .
. that [President] Trump endorsed and intended the actions of the mob on
January 6,” (Opinion p. 129).
The Trial Court
also found that President Trump’s calls for imminent lawlessness and violence
during his speech were likely to incite such imminent lawlessness and violence.
When President Trump told his supporters that they were “allowed to go by very
different rules” and that if they did not “fight like hell,” they would not
“have a country anymore,” it was "likely that his supporters would heed his
encouragement and act violently.” (Opinion p. 132).
Looking at
the tests for whether speech is protected (context, intent to incite and
likelihood of doing so) and applying this test to the Trial Court’s findings of
fact, it can reasonably be concluded that Trump’s January 6 speech was not
protected by the First Amendment.
Remember,
the trial judge or hearing officer is the finder of fact, not those of us who were not there to
see the evidence presented and second guess what was and was not presented
along with its credibility. Also recall
that Trump did not counter most of the evidence that was submitted.
A note on
the Maine Case
The
Secretary of State of Maine has similarly decided that Trump’s name should be
removed from the primary ballot there because he is not qualified under Section
Three of the Fourteenth Amendment. The
reasoning for this decision is similar to that of the Colorado Supreme Court.
Though
Maine’s election laws are different from those of Colorado, and in Maine the
decision was made by the Secretary of State following an administrative
hearing, this process was proper under Maine’s election laws. Moreover, although this was an administrative
hearing rather than a judicial trial, due process was satisfied: the parties had notice and an opportunity to
be heard. Evidence was presented, though
again Trump chose to offer little if any evidence countering the facts.
There is
no reason that the Maine decision should not be affirmed just as the Colorado
decision should be affirmed.
Conclusion
There are
several possible outcomes for this case at the U.S. Supreme Court. They include:
- The decision is entirely affirmed.
- The Supreme Court decides that the
Colorado Court exceeded its powers, it had no jurisdiction to hear or decide
the case and the case is therefore dismissed.
- The Supreme Court redefines some
or all of the terms of Section Three and remands the case for further
consideration under those terms.
- The Court decides that for some
reason due process was violated and remands or dismisses the case.
- The Court decides the January 6
speech was protected and it therefore negates or cannot be used as evidence for
application of Section Three disqualification.
- Or any combination or modification
of, or addition to, the above.
I believe
that that the Colorado Supreme Court decision should be affirmed in its
entirety. Under reasonable and legally
supportable definitions of the terms, there was an insurrection and according
to the evidence presented, Trump engaged in that insurrection. He had notice and opportunity to be heard, so
due process was not violated. The
Colorado law provided jurisdiction to the Colorado court to hear and decide the
case, and the Colorado Supreme Court has determined that Colorado law and
procedure were properly followed. The
people’s right to vote for qualified candidates is not being infringed; the
people do not have a right to ignore or overwrite the Constitution.
This is a
difficult decision not because the legal issues are not clear, but because of
the mood of the country and the disinclination of so many to respect any
decision, no matter how well reasoned, if they do not like the result to which
that reasoning leads. Moreover, too many
do not really understand our government, our Constitution, the interplay of federal
and state law, and the fact that we are not a pure (i.e. mob rule) democracy
but are a Representative Democracy guided by the Constitution and the Rule of
Law. I certainly do not envy the Supreme Court
Justices’ current task, and I pray they will find strength to shut out the (very
loud) noise of the mob and follow the Constitution wherever it leads.
