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How A Win In Colorado Actually Spells Trouble For Trump
The factual findings by the district court are damning, even if she let him off on a technicality
Late last Friday, a Colorado judge issued a ruling that Trump’s legal team cheered, at least initially. At issue was whether Trump could remain on the Colorado ballot as a presidential candidate, or whether he was barred by Section 3 of the 14th Amendment.
That section basically says no officer who previously swore an oath to support the Constitution, but engages in insurrection or rebellion against it, shall hold federal office. The judge ruled Trump was not barred from appearing on the state’s ballot. But here’s the curious thing: She reached that ruling after issuing a series of factual findings that are highly damaging for Trump.
Chief among them were these three: 1) Trump had engaged in insurrection on January 6th through incitement, 2) the First Amendment did not protect Trump’s speech, and 3) Trump specifically and unlawfully intended to disrupt the electoral certification of Biden’s victory.
But then, in a surprise move, she let Trump off the hook on what certainly feels to many like a technicality. She ruled Section 3 does not apply to the presidency because the drafters did not intend it to. She cited the fact that they had excluded mention of that office while including others in the section. And, rather bafflingly, she found Trump’s oath to “preserve, protect and defend” the Constitution did not mean he swore an oath to “support” it.
This is a rather tortured ruling. But it raises some important questions. Why didn’t the Court just dismiss the case on legal grounds? Why go through and make all these damning factual findings if she’s only going to toss the case?
And some legal observers are asking the next logical question: Doesn’t this set up an appeal that, if the ruling gets reversed on the law, looks very bad for Trump on the facts?
Let’s take a closer look.
What does Section 3 say?
Section 3 was enacted following the Civil War to put a check on the power of former Confederate officers. It did so by keeping them out of federal elected office. Here is the language of the section:
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.
Stripping it down to the part relevant to Trump, it reads:
No person shall…hold any office…who, having previously taken an oath…as an officer of the United States, 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.
How did the judge find that Trump isn’t covered by this?
The judge, Denver District Judge Sarah B. Wallace, reasoned that the section refers to some offices by name (Senator, Representative, elector) but does not mention the presidency. She found, therefore, that the drafters of the Section “did not intend to include the President of the United States.”
But there’s that word in there: “officer.” Isn’t the President of the United States an officer?
To be fair to the judge, there is some evidence that the term “officer” is quite specific, and that the Constitution limits the term to those who are appointed by the president—and that it does not include the president himself.
On the other hand, Article 2 begins by talking about the “Office” of the presidency. And it’s certainly clear in other contexts that one “officer” can appoint other “officers.” It happens all the time.
These contradictions, at least in the mind of Judge Wallace, raise a “close question” on whether Section 3 was intended to include the presidency, looking just at the term “officer” as it’s used throughout the rest of the Constitution. As legal observer Teri Kanefield noted, the judge did admit that it wasn’t clear to her, at least from the legislative record, why the drafters would have exempted the president when including every other federal officer. But in the end, the judge fell on the side of caution, not wanting to overstep her authority without unmistakable language.
She also took issue with the precise wording around an oath to “support the Constitution.” The president’s oath, on the other hand, is to “preserve, protect and defend” the Constitution.
That’s not “support,” according to her ruling. (I personally find this particular stretch a bit much.)
More broadly—and here’s the gist of it—Judge Wallace wrote, “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.”
In other words, because there’s even the slightest ambiguity here, it should be resolved not by the courts but by the people in a democratic process. Voters should be free to elect the person of their choice.
But wait, the president isn’t an officer? That makes no sense
Lofty prevarications aside, the ruling sets up something of an absurdity, which courts should seek to avoid as a result of their rulings.
“The idea that any official who would engage in insurrection would be barred from taking office except the Presidency is incredibly surprising,” said Colorado Secretary of State Jena Griswold. “It basically means that the Presidency is a get out of jail free card for insurrection.”
Harvard law professor Laurence Tribe took it further, observing that this would hand any president a “get back into the Oval Office again” card, one that somehow “no other insurrectionist could qualify for.”
Tribe, who is a chief proponent of using Section 3 affirmatively to disqualify Trump from ballots across the country, further argued that the judge had essentially ruled that the Framers intentionally “left a loophole in the wall they built to protect our republic by naming the president as the one officer who could engage in insurrection against the Constitution without losing the chance to run again!”
It doesn’t take much to see how the Framers couldn’t really have intended this outcome.
The buck didn’t stop there
For many observers, this ruling feels like a punt. Higher courts, likely including the Supreme Court, are now going to have to determine whether “an officer of the United States” in fact includes the president and that his oath to “serve, protect and defend” the Constitution includes the requirement to “support” it. There is a decent chance that the liberal Colorado Supreme Court will reverse the district court on this question of law.
What the U.S. Supreme Court might do after that is anyone’s guess. There is enough of an argument against reaching an absurd result that they could readily rule against Trump. But there is a small hole and enough ambiguity in the legislative record that they could affirm the district court’s ruling.
Them bad facts are now the factual record
Before reaching her contrary opinion, the judge cited many instances where Trump incited insurrection and found his arguments that he was only exercising his free speech unpersuasive.
As Andrew Weissmann of New York University noted in a thread, Judge Wallace’s opinion cited Trump’s long history of promoting violence through his speeches, including his statements that violence is “very, very appropriate” and that “we need a little bit more of it.” Wallace also found that Trump knew his claims of voter fraud were false and that he had submitted zero evidence to prove that he actually believed the election was stolen. (Trump did not take the stand, for example.)
She cited Trump’s repeated calls to violence during his speech at the Ellipse on January 6th, including his statement, “When you catch somebody in fraud, you’re allowed to go by very different rules.”
And for you Brandenburg fans, there’s this: “The Court finds that Trump’s Ellipse speech incited imminent lawless violence.” That is of course the very standard that the Supreme Court set long ago that changes protected speech into unlawful incitement.
So where does this leave things?
There is now a rather wild scenario set up for appeal.
The factual findings that the Court insisted on making—probably on the possibility that her technical ruling for Trump might get reversed—are likely going to stand. Appellate courts generally defer to the trial court on the facts and do not generally revisit the findings so long as they are substantially supported by the record. The trial judge, after all, was in the best position to assess things like the evidence and witness credibility.
That means, paraphrasing Tribe, that there is a very high factual wall for Trump to climb, but he’s holding on to a very thin legal rope as he scales it. If the higher courts cut that rope, Trump will be left with just the damning findings by the district court that he committed insurrection and that he illegally sought to disrupt the congressional electoral count.
There’s no way to know how the appeal will play out. But Trump shouldn’t be celebrating. While it might make abstract sense in a democracy to allow the people to decide whether even a dangerous candidate like Trump should be able to stand for election, courts also must give weight to the intent of the Framers and to the literal words of the Constitution.
Those Framers didn’t want insurrectionist officers in the government. They amended the Constitution to ensure that. Could they really have intended to exclude the president from this rule? If so, why?
If Trump is in fact an insurrectionist and violated an oath to support the Constitution, then to give any real meaning to Section 3, he shouldn’t be allowed on the Colorado ballot, or any state ballot for that matter. And courts are the precise place to decide that.