In a shocking decision, the Colorado Supreme Court held today, in a Per Curiam opinion, with three justices dissenting, that Donald Trump is an “insurrectionist” who is barred by Section 3 of the 14th Amendment from running for the presidency. So, absent some action by the U.S. Supreme Court, which is extremely unlikely, Trump will not be on the Republican primary ballot or, if it comes to that, the general election ballot in Colorado.
Section 3 of the 14th Amendment precluded those who were federal officials before the Civil War, and then served in the Confederacy or its army, from again holding federal office after 1865. I have written that the theory that this provision somehow applies to Donald Trump is idiotic and ahistorical. The January 6 protest, which certainly did get out of hand, was not an “insurrection”–insurrectionists would have remembered to bring at least one firearm–and Trump urged those who were present in Washington that day to go forward and protest peaceably and legally. Not exactly Fort Sumter.
But the Colorado Supreme Court has struck its blow for the Democratic Party:
• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.
• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”
• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.
• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.
¶5 The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.
These findings started with the district court judge. I haven’t researched his or her provenance, but that will no doubt emerge soon. He or she made the critical findings which the Colorado Supreme Court now holds to be properly with that court’s discretion. In my opinion, they were obviously wrong.
So, where do we go from here? We are in uncharted waters. Never before have we confronted a situation when one political party, that controls a particular state or its highest court, has tried to prevent a candidate of the opposing party from running for president. One cannot overstate what a watershed moment this is. The Democratic Party has staked a claim to permanent control of our federal government, regardless of the will of the American people. This has never happened before in our nation’s history.
Sadly, I think today’s Colorado Supreme Court decision increases the likelihood of violence in connection with the 2024 presidential election. We are rapidly descending to the status of a third world country, and partisan decisions like this one will accelerate that descent. Liberals hate democracy, and this is their latest assault on it. How Americans will respond to this attack on democracy remains to be seen.
UPDATE: A number of readers have wondered why I said the Supreme Court is unlikely to intervene. On reflection, that was an offhand comment that was not thoroughly thought through. There were two reasons for it:
First, the Republican majority on the Court is highly reluctant to wade into waters that are seen as political. Ruling in Trump’s favor would use up a large share of the Court’s diminished political capital, and Trump is hardly the person on whom the justices want to expend that precious commodity. On the other hand, the application of Section 3 of the 14th Amendment is a federal question that is squarely presented by this case and may not be easy to duck.
Second, the Court would need to act fast, as the primary season is nearly upon us. Normally, litigating any case in the Supreme Court takes time. I assume the Court would want to hear from a number of parties and would want extensive briefing. On a normal calendar, I don’t think there is enough time for that to happen. On the other hand, the Court can act more quickly if it wants to, and if it is willing to expend, in this case, the necessary political capital. So it could be possible.
A friend who is a very good lawyer writes:
I suspect that in fact the Supreme Court will immediately grant an emergency appeal and will rule 9-0, or 8-1 if Justice Jackson wants to be her usual moronic self, to overturn the Colorado decision. I imagine that every justice on the Supreme Court understands the implications of the decision, which would mean that any partisan state court could take the other party’s candidate off the ballot. So I will be shocked if they don’t feel the urgency to settle this once and for all. In fact, there has to be a lot of concern about the partisan turn of the courts in general.
I hope my friend is correct. I would only note that in the minds of many voters, the “partisan turn” of the courts is in our direction under the current Court–something to which the justices are acutely sensitive. And for the Democratic justices to renounce partisanship by voting in a way that is good for America but bad for the Democrats, in a high-profile, politically-charged case, is theoretically possible, but I am not sure there is any precedent for it.
STEVE adds: There’s a third way this might play out. Trump could appeal to a federal district court, which could throw out the ruling, and the Supreme Court would then deny Colorado’s petition for cert. The Supreme Court then dodges direct involvement, but gets the right result. I predict the Supreme Court will kick Jack Smith’s appeal on the J6 case back to the DC Circuit Court for similar reasons. In any case, we’ll take up this issue with John Yoo on this week’s podcast.
Author: John Hinderaker