Left: FILE — Insurrectionists loyal to President Donald Trump try to break through a police barrier, Wednesday, Jan. 6, 2021, at the Capitol in Washington. (AP Photo/John Minchillo, File) Right: Republican presidential candidate and former President Donald Trump speaks to the crowd during a caucus event, Saturday, Dec. 2, 2023, at Kirkwood Community College in Cedar Rapids, Iowa. (Geoff Stellfox/The Gazette via AP)
With a need for a speedy decision at the forefront of some justices’ minds, the Colorado Supreme Court on Wednesday wrestled with significant constitutional questions on whether former President Donald Trump can — or should — remain on the state’s ballot in 2024.
A judge in the Second Judicial District Court in Denver issued a ruling last month finding that Trump could remain on the Mile High state’s ballot though she affirmed that he “engaged in insurrection” as it is defined under Section III of the Fourteenth Amendment.
The statute, which stems from the Civil War, prohibits a person from holding office — an “officer” as they are statutorily defined — if they are found in violation of their previously sworn oath to uphold and defend the U.S. Constitution by “engaging in insurrection.”
More specifically, it states:
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
Only amnesty granted by Congress can restore standing for an oath-taker found in breach of the bedrock provision.
At the center of the argument made by Trump’s lawyer, Scott Gessler, on Wednesday was that Section III does not spell out that it is meant for a president. Instead, in his estimation, it applies only to the “electors” of a president or vice president.
Citizens for Responsibility and Ethics in Washington attorney Jason Murray, who argued on behalf of six voters seeking to remove Trump from the ballot, tried to address that and other concerns over any ambiguity perceived in Section III.
In legal circles, experts and constitutional analysts alike have debated the meaning of “officer” in the provision at length, with a large, if not overwhelming, number of scholars finding that a president would logically be considered an “officer” of the United States.
The text of Section III is “very clear,” Murray contended, and to exclude the very commander-in-chief who engaged in insurrection as an “officer” was “wrong” for several reasons, he said.
Broad definitions of “office” and “officer” clearly included the presidency in the historical record, he argued. Among both supporters and opponents of the Fourteenth Amendment at the time it was created, it was meant to “disqualify rebels from holding substantial positions of power up to and including the presidency,” he said.
“How could anyone let someone into office who had violated the oath to it before?” he said.
But it hadn’t been spelled out, Justice Carlos Samour Jr. pushed back.
Samour asked Murray pointedly: if it was so important that the president be included, why not say so?
“Why not include president and vice president the way you spell out … senator or representative?” he prodded.
It was the “kitchen sink approach” being used by the drafters of the provision, Murray said.
Section III was a “self-defense mechanism” against those who would undo democracy.
While Samour and other justices seemed dubious about the definition of officer, one court justice appeared deeply skeptical that Trump’s attorneys were not making an absurdist argument altogether, asking plainly: “How is not absurd to say anyone who engaged in insurrection can’t serve in office except for the presidency?”
“How is that not absurd?” the court asked.
Would the framers have taken any comfort in thinking so-called “electors” could protect the citizenry from insurrectionists like the leader of the Confederacy, Jefferson Davis? the court pressed.
Gessler said “yes,” arguing that it would be left to democracy to sort out who was worthy of being ushered into office. He said that if the people chose an insurrectionist for office, “that would be the rule of democracy at work.”
The justices also engaged in a series of hypotheticals on Wednesday, trying to get at the logic in Trump’s argument and determine what, precisely, might qualify or disqualify a candidate, like age or citizenship.
The court reminded Gessler that in case law such as Timmons v. Twin Cities Area New Party, the court found there was no absolute right afforded to anyone to put an unqualified candidate on a ballot.
Gessler said “state party rule” would prevail.
So if the Democratic Party wanted to put former President Barack Obama on the ballot, even if it would be a violation of the 22nd Amendment, or a “27-year old kid” or even Arnold Schwarzenegger, they would have every right to do that under Trump’s logic, the court asked.
“The courts are split, but the weight of authority, concerning President Obama, Senators Ted Cruz and John McCain, all of whom were challenged on natural born citizenship, the weight of authority is that states do not have the authority to be able to consider that.”
A decision is expected to be issued expeditiously as it is almost certain to be appealed, regardless of the outcome, and then head to the U.S. Supreme Court.
Trump’s defense team somewhat unsuccessfully argued that a late decision could cause “chaos” across the country if states were left mired with last-minute questions about whether Trump was a qualified candidate.
Justice William Hood told Gessler there wouldn’t be chaos nationwide. Many states have their own rules as it is for qualification.
He noted that if they find it necessary to reverse Judge Wallace’s ruling that Trump can stay on the ballot, it will go to appeal.
Then, it will be left to the Supreme Court to decide for everyone.
“We shouldn’t rely on the hope that the Supreme Court will step in,” Gessler said. “We should look at it in advance and prevent that bad situation from happening.”
Where the justices will fall on whether Trump “engaged” in insurrection, as Wallace found, is uncertain.
Gessler told the court Jan. 6 was not an “insurrection” by the definition of the word and that Jan. 6 was only a “three-hour riot.”
For Jan. 6 to be insurrection, it would have had to go longer than three hours, and the “geographical scope has to be broader than a single building.”
On rebuttal, another attorney representing the petitioners pointed to a text from former Trump campaign adviser Brad Parscale to campaign spokesperson Katrina Pierson on Jan. 6 that he said gave away the whole game.
“A sitting president is asking for Civil War,” Parscale wrote.
On Olsen rebuttal he says incitement standard is easily met just by looking at Brad Parscale’s text: https://t.co/3ftE7HDMmO
— Brandi Buchman (@Brandi_Buchman) December 6, 2023
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