A appeal to the Colorado Supreme Court aims to prevent former President Donald Trump from featuring on the state’s primary ballot, challenging a district court ruling that acknowledged his involvement in the Jan. 6, 2021 incident but refused to deem him ineligible on 14th Amendment grounds owing to the presidency not being classified as an “office.”
Other parts of President Trump’s appeal with the Colorado Supreme Court relate to whether a district court even has the jurisdiction to determine a candidate’s qualifications for the ballot under Section 3 of the 14th Amendment absent a congressional authorizing statute.
Section 3 of the 14th Amendment is known as the disqualification clause. It states that no person shall hold office if they have “previously taken an oath as a member of Congress, or as an officer of the United States” and engaged in insurrection or rebellion against the Constitution.
‘Officer’
Ratified after the Civil War, the 14th Amendment extended citizenship and equal rights to former slaves and all persons born and naturalized in the United States.Section 3 of the amendment prohibited anyone who had participated in “rebellions” or “insurrections” from holding office unless they had a two-thirds vote of exemption from Congress.
Section 3 reads: “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.”
Petitioners who sued the Colorado secretary of state to force President Trump off the primary ballot argued that “officer of the United States” would certainly cover the highest office in the federal government and so the 14th Amendment’s disqualification clause should apply.
However, the judge said there was “scant evidence” that was the case, noting in her ruling that the authors of the 14th Amendment specifically listed offices, with the presidency not among them.
“To lump the Presidency in with any other civil or military office is odd indeed,” she wrote, “and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President.”
She wrote that the courts would be correct to assume that the omission of the presidency from the disqualification list in the 14th Amendment is intentional.
Attorneys for President Trump argued much the same point, noting that there are multiple places in the U.S. Constitution where the president of the United States is listed separately from “officers,” such as the appointments clause, the impeachment clause, the commissions clause, the oath and affirmation clause, and Article VI.
The judge found that to be a compelling argument.
“The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as ‘an officer of the United States.’”
‘Insurrection’
In their appeal to the Colorado Supreme Court, lawyers for President Trump raised several objections to the district court finding that the former president had “engaged” in an “insurrection” by inciting the Jan. 6 Capitol riot.For one, they questioned whether it was even appropriate for Judge Wallace to have made that determination given that she found Section 3 of the 14th Amendment did not apply to the presidency.
“Should these findings be vacated because the district court self-admittedly lacked jurisdiction to apply Section Three to President Trump?” his attorneys asked in the filing.
Further, they pointed out that, for the first time ever, the district court found that the phrase “engaged in” as used in the 14th Amendment includes the notion of “incitement.”
“Was the District Court correct to define ‘engaged in’ so broadly?” they asked in the petition.
The district court also ruled that President Trump’s political speech “incited” violence, while his lawyers argued that his words never actually called for violence and so the district court erred in its determination of incitement.
President Trump said in his Jan. 6 speech that protesters should “peacefully and patriotically make your voices heard,” though some have seized on a portion of his remarks where he said “we fight like hell” and “if you don’t fight like hell, you’re not going to have a country anymore” as a call for violence.
The former president has, on numerous occasions, denied calling for violent protests while insisting he meant his remarks about fighting like hell metaphorically.
But Judge Wallace saw otherwise.
“The Court finds that Trump’s Ellipse speech incited imminent lawless violence. Trump did so explicitly by telling the crowd repeatedly to ‘fight’ and to ‘fight like hell,’ to ‘walk down to the Capitol,’ and that they needed to ’take back our country‘ through ’strength.’ He did so implicitly by encouraging the crowd that they could play by ’very different rules’ because of the supposed fraudulent election,” she wrote.
“In the context of the speech as a whole, as well as the broader context of Trump’s efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021 and his long-standing pattern of encouraging political violence among his supporters, the Court finds that the call to ‘fight’ and ‘fight like hell’ was intended as, and was understood by a portion of the crowd as, a call to arms,” she added.
President Trump’s lawyers also objected to the use of the label “insurrection” to label the events of Jan. 6. They also argued that there should be a higher burden of proof than “preponderance of evidence” to make a determination about having “engaged” in an “insurrection” than was applied by the district court.
Finally, President Trump’s attorneys questioned the district court’s reliance on the Jan. 6 Committee report, arguing that the panel’s “bias” and the report’s “extensive use of multi-level hearsay” render the report inadmissible.
