Opinion

So, did Trump engage in insurrection? The Colorado Supreme Court, upholding the findings of a lower court judge, concluded he did.

Any definition of the term, the Colorado court said, “would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” And, it said, it had “little difficulty concluding that … the events of January 6 constituted an insurrection,” as a mob armed with deadly weapons and intent on blocking Congress from certifying the election results “repeatedly and violently assaulted police officers who were trying to defend the Capitol.”

That raises the harder question of whether Trump himself engaged in this insurrection. The Colorado court noted that Attorney General Henry Stanbery, in office at the time the 14th Amendment was being debated, found that “a person may ‘engage’ in insurrection or rebellion ‘without having actually levied war or taken arms’” if they commit “any overt act for the purpose of promoting the rebellion.” Trump, the court said, did just that. After the election, he riled up his followers to dispute the election results. On Jan. 6, 2021, he “gave a speech in which he literally exhorted his supporters to fight at the Capitol.”

And Trump, it said, “did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”

Advertisement

Trump’s lawyers dispute both conclusions. “‘Insurrection’ as understood at the time of the passage of the Fourteenth Amendment meant the taking up of arms and waging war upon the United States,” they told the high court. “In the context of the history of violent American political protests, January 6 was not insurrection and thus no justification for invoking section 3.”

In addition, they argue, “nothing that President Trump did ‘engaged’ in ‘insurrection.’” Rather, “his only explicit instructions called for ‘protesting peacefully and patriotically,’ to ‘support our Capitol Police and Law Enforcement,’ to ‘[s]tay peaceful,’ and to ‘remain peaceful.’”

This is convenient cherry-picking of a record that is far less kind to Trump. But it’s worth noting, though not dispositive, that special counsel Jack Smith chose not to charge Trump — indeed, he hasn’t charged any of the Jan. 6 defendants — under the federal insurrection law, which targets “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof,” and which carries with it the penalty of disqualification from public office.

Smith might have been wary of using that law because it would have allowed Trump to contend that charging him with incitement to insurrection violates his right to free speech. The same delicate First Amendment balance arises in the Section 3 context: whether Trump’s language was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” as the Supreme Court ruled in Brandenburg v. Ohio (1969).

The Colorado Supreme Court said Trump’s incendiary words met that stringent test, citing, among other things, a Chapman University sociologist who testified about how extremists respond to Trump. Free speech protections “should not turn on opinions from sociology professors,” Trump’s lawyers told the court, and it’s easy to see a majority seizing on the First Amendment question to defend Trump’s speech and therefore his right to remain on the ballot.

Section 3 doesn’t apply to Trump because it doesn’t cover presidents.

This sounds preposterous, but it might provide a tempting off-ramp for the justices. In describing those subject to disqualification, Section 3 specifies those who are senators, representatives, presidential electors, or “hold any office, civil or military, under the United States, or under any State” and who previously took an oath “as a member of Congress, or as an officer of the United States.” Is the presidency such an office and the president such an officer?

If the amendment’s authors meant it to apply to the president and vice president, it seems odd that they would specify members of Congress and even presidential electors but leave out those positions. Yet it seems odder still that the amendment would prohibit insurrectionists from holding minor state offices but not the most important post in the land.

Grappling with this issue, the Colorado Supreme Court said the lower court had erred in tossing out the effort to disqualify Trump on these grounds. “It seems most likely that the Presidency is not specifically included because it is so evidently an ‘office,’” unlike members of Congress or presidential electors. It noted that the Constitution itself refers to the presidency as an office 25 times, “and refers to an office ‘under the United States’ in several contexts that clearly support the conclusion that the Presidency is such an office.”

For example, the impeachment clause allows Congress, as a consequence of removal from office, to impose “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” If the presidency it not an office “under the United States,” the court said, “then anyone impeached — including a President — could nonetheless go on to serve as President,” a “nonsensical” reading.

An earlier version of Section 3 specifically listed the president and vice president, a change the lower court found compelling. But the Colorado Supreme Court cited evidence that the drafters believed their new language covered those top offices. It pointed to a Senate debate in which one lawmaker expressed concern that the language “does not go far enough” because insurrectionists “may be elected President or Vice President of the United States.” Another senator replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

In addition, the Colorado Supreme Court writes, the debates during and after ratification of the 14th Amendment assumed the presidency was covered. “Many supporters of Section Three,” it noted, “defended the Amendment on the ground that it would exclude Jefferson Davis from the Presidency.”

Advertisement

In sum, the court, said, “A construction of Section Three that would nevertheless allow a former President who broke his oath, not only to participate in the government again but to run for and hold the highest office in the land, is flatly unfaithful to the Section’s purpose.”

Trump’s lawyers respond that the drafters would have listed the presidency if they had meant to cover it. To interpret it to include the........

© Washington Post