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Trump ‘engaged in an insurrection,’ judge says, but should remain on Colorado ballot

<i>Scott Eisen/Getty Images</i><br/>
Scott Eisen/Getty Images

By Marshall Cohen, CNN

(CNN) — A Colorado judge has ruled that former President Donald Trump “engaged in an insurrection” on January 6, 2021, but rejected an attempt to remove him from the state’s 2024 primary ballot, finding that the 14th Amendment’s “insurrectionist ban” doesn’t apply to presidents.

The major decision issued Friday by Colorado District Judge Sarah Wallace comes after judges in Minnesota and Michigan also refused to remove Trump from that state’s Republican primary ballots.

These three high-profile challenges against Trump, which had the backing of well-funded advocacy groups, have so far failed to remove him from a single ballot, with the 2024 primary season fast approaching.

However, the 102-page ruling in Colorado offered a searing condemnation of Trump’s conduct, labeling him as an insurrectionist who “actively primed the anger of his extremist supporters,” and “acted with the specific intent to incite political violence and direct it at the Capitol.”

Wallace concluded that “Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech” at the Ellipse that day. She also found that Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means.”

The 14th Amendment, ratified after the Civil War, says American officials who take an oath to support the Constitution are banned from future office if they “engaged in insurrection.” But the Constitution doesn’t say how to enforce the ban, and it has only been applied twice since 1919 – which is why many experts view these lawsuits as long shots.

The provision explicitly bans insurrectionists from serving as US senators, representatives, and even presidential electors – but it does not say anything about presidents. It says it covers “any office, civil or military, under the United States,” and Wallace ruled that this does not include the office of the presidency.

“After considering the arguments on both sides, the Court is persuaded that ‘officers of the United States,’ did not include the President of the United States,” she wrote. “It appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.”

Legal scholars believe these cases will, in some form, end up at the US Supreme Court. But before that, the GOP and independent voters who filed the Colorado lawsuit in coordination with a liberal watchdog group, could first file an appeal to the Colorado Supreme Court.

‘Trump engaged in an insurrection’

In her ruling, Wallace agreed with almost everything that the challengers argued, except on the critical question of whether a president can be disqualified by the 14th Amendment.

But she largely backed their interpretation of Trump’s behavior after the 2020 election and, importantly, in his January 6 speech and during the riot.

“Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder,” she wrote.

Trump’s campaign has said these lawsuits are meritless attempts to deploy an “absurd conspiracy theory” to block him from office, especially when he has a commanding lead in the GOP primary and is doing well in head-to-head polls against President Joe Biden.

“We applaud today’s ruling in Colorado, which is another nail in the coffin of the un-American ballot challenges,” Trump spokesman Steven Cheung said in a statement. “The American voter has a Constitutional right to vote for the candidate of their choosing, with President Donald J. Trump leading by massive numbers.”

Citizens for Responsibility and Ethics in Washington, the group involved in the Colorado case, fell short against Trump but succeeded last year in enforcing the “insurrectionist ban” to remove a convicted January 6 rioter from a New Mexico county commission. The group said it would file an appeal “shortly” to the Colorado Supreme Court, and hailed Wallace’s finding that Trump engaged in insurrection.

“We are proud to have brought this historic case and know we are right on the facts and right on the law,” CREW President Noah Bookbinder said in a statement. “When we filed this case, we knew it likely would not end at the district court level.”

Beyond the disqualification attempts, Trump faces state and federal criminal charges in connection with his bid to overturn the 2020 election. He has pleaded not guilty.

Colorado Secretary of State Jena Griswold said in an interview with CNN’s Erin Burnett Friday evening that allowing the judicial system to decide “big contentious issues” is “how this country should work.”

“Regardless if Trump is on the ballot or not, he is a danger to American democracy,” Griswold said, adding that the former president’s allegations that the case was “somehow election interference is just the continuation of his lies to the American people about our democracy.”

Griswold did not take a position in the case, but said that she expects the ruling will go through the appeals process, and that she will “follow whatever judicial decision is in place” by the January deadline for her to certify which names will appear on Colorado’s GOP primary ballot.

Trump lawyer Scott Gessler told CNN’s Kaitlan Collins he thought Wallace was “flat-out wrong” about the former president engaging in insurrection but praised her ultimate decision to keep him on the Colorado ballot.

“We’re respectful that the judge made the right decision,” Gessler said on “The Source.” “I understand she threw a lot of shade on President Trump, and we’re not happy about that. And we disagree with it. But at the end of the day … she’s respecting the democratic processes.”

Derek Muller, an election law expert at Notre Dame Law School, said Wallace’s conclusions about Trump’s role in the insurrection were “remarkable.”

“The court issued an opinion sure to make no one happy,” said Muller, who had filed briefs in a related case that was neutral on Trump’s eligibility but offered analysis of key legal questions. “It says Trump engaged in insurrection but can appear on the ballot anyway. It’s a remarkable holding and one that will set up an extremely important appeal.”

Historic disqualification trial

The case against Trump in Colorado revolved around his history of stoking political unrest, his public call for supporters to flock to Washington, DC, for a “wild” protest on January 6, and his instruction that they march to the Capitol and “fight like hell” to stop Congress from certifying Biden’s victory.

In the eyes of the challengers, these actions clearly rose to the level of “engaging in insurrection” against the US Constitution – which is the bar for disqualification set by Section 3 of the 14th Amendment.

The weeklong bench trial featured firsthand accounts from US Capitol Police officers who were wounded fending off the pro-Trump mob on January 6, video clips of Trump’s incendiary speech before the riot and testimony from an expert on right-wing extremism who said far-right brawler groups like the Proud Boys interpreted Trump’s words as “a call to violence.”

An attorney for the challengers, Sean Grimsley, said at closing arguments Wednesday that “the Constitution does not allow” Trump to return to office, no matter his standing in the polls.

“Our founders have made clear, time and again, that a candidate’s popularity does not supersede the Constitution,” Grimsley said. “The rule of law must apply whether a candidate has no chance of winning election or is a potential frontrunner. The application of Section 3 is at its most urgent when a person who has desecrated their oath to support the Constitution seeks the highest office in the land.”

Trump’s lawyers called witnesses who said his team tried to avoid violence that day and that he had authorized National Guard troops to keep DC safe on January 6.

Even before the trial, they unsuccessfully argued that the case should be thrown out because the allegations against Trump were largely based on his speech before the riot, which they claimed was protected by the First Amendment and did not meet the legal standard for inciting violence.

“They’re making up the standard so that it fits the facts of January 6,” Gessler, the Trump lawyer, said in his opening statement at the trial, adding that Trump “didn’t carry a pitchfork to the Capitol grounds, he didn’t lead a charge, he didn’t get in a fistfight with legislators,” but rather “gave a speech in which he asked people to ‘peacefully and patriotically’ go to the Capitol to protest.”

The trial was also a history lesson in the Civil War, the tumultuous Reconstruction era, the congressional debate over drafting and ratifying the 14th Amendment, and the application of its insurrectionist ban.

Indiana University law professor Gerard Magliocca, perhaps the nation’s top scholar on the provision, testified in favor of removing Trump from the ballot. He explained how thousands of former Confederates were disqualified from office, including some who never took up arms, even one congressman-elect who had only written a letter-to-the-editor advocating violence against Union troops.

The provision says, in part: “No person shall… hold any office … under the United States … who, having previously taken an oath … 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.”

This story has been updated with additional developments.

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