Written by Dean Obeidallah
The Colorado Supreme Court (happily) surprised all of us with their 4-3 decision on Tuesday that Donald Trump is ineligible to be a presidential candidate because of the 14th Amendment’s “insurrectionist ban.” In response, Trump’s campaign slammed the ruling as “undemocratic.”
What Trump calls “undemocratic,” is actually called upholding the United States Constitution.
What is truly undemocratic? Trump attempting a coup and engaging in an insurrection to prevent the peaceful transfer of power. Indeed, that is the very definition of undemocratic. And it’s exactly what the Colorado Supreme court found Trump attempted to do, explaining that Trump’s goal with the insurrection that “he himself conceived and set in motion” was to “prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”
The court is 100% correct. This is an issue I’ve long been writing about. In September 2022, well before this lawsuit was filed, I wrote an article for MSNBC.com about a New Mexico court barring GOP county commissioner Cuoy Griffin from office after finding he had engaged in the Jan 6 insurrection. As I explained then, the trial judge’s detailed opinion on why Jan 6 was an “insurrection” and what it means to have “engaged” in it, provided an excellent roadmap to bar Trump from the ballot. In fact, Trump had done far more than Griffin who was barred from the ballot.
And in August, I wrote an article—and appeared on MSNBC–urging people to send a letter to their Secretary of State to disqualify Donald Trump by way of the 14th Amendment—and many did. However, it was clear from the responses we received from the secretary of states that it would require a court ruling to bar Trump.
That brings us to Tuesday’s very well-reasoned decision in Colorado. I want to share some of the language of the 133-page majority opinion that was both powerful and compelling.
First, the court addressed if Jan 6 was an “insurrection” as contemplated by Section 3 of the 14th Amendment. In the earlier lower court trial in this case–where Trump’s lawyers participated, called witnesses, introduced evidence etc.–the judge looked at the historical meaning of “insurrection” at the time the 14th Amendment was drafted. Judge Sarah Wallace then concluded that “an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.” The Supreme Court affirmed that ruling noting there was ample evidence to support that conclusion that the goal of the Jan 6 insurrection was to prevent Congress from certifying President Biden’s victory on that date.
Next, the question was whether Trump “engaged” in that insurrection within the meaning of the 14th Amendment. The Colorado Supreme Court noted that the US Attorney General at the time of the 14th Amendment was drafted, Henry Stanbery, explained that a person could have “engaged” in an insurrection even if the person had not “levied war” or “take arms.” Rather, Stanbery opined that “when individuals acting in their official capacities act “in the furtherance of the common unlawful purpose” or do “any overt act for the purpose of promoting the rebellion,” they have “engaged” in insurrection or rebellion for Section Three disqualification purposes.
The court then detailed Trump’s overt acts that he took for several months to build support for the Jan 6 insurrection, beginning with Trump refusing to accept the election results, spewing lies about the election being stolen to calling his supporters to Washington DC for a “wild” time on Jan 6. The court also laid out how on Jan 6, Trump incited the crowd to head to the Capitol to “stop the steal,” knowing they were angry and many were armed. And the court gave great weight to the fact that during the Jan 6 insurrection, “Trump took no action to put an end to the violence. To the contrary, as mentioned above, when told that the mob was chanting, “Hang Mike Pence,” President Trump responded that perhaps the Vice President deserved to be hanged.”
In sum, the court concluded: “Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process. For these reasons, we conclude that the record fully supports the district court’s finding that President Trump engaged in insurrection within the meaning of Section Three.”
Finally, came the legal question of whether Section 3 applies to a President given that this constitutional provision expressly notes its applicability to members of Congress and members of any State legislature but not the office of President. Section 3 does, however, state it also applies to any “officer of the United States.”
The trial judge had concluded that Section 3 didn’t apply to a President. However, the Colorado Supreme Court rejected that interpretation instead finding that “the clear purpose of Section Three” was “to ensure that disloyal officers could never again play a role in governing the country.” The court added, “The drafters of Section Three were motivated by a sense of betrayal; that is, by the existence of a broken oath, not by the type of officer who broke it.”
The court powerfully and rightly concluded: “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.”
It flies in the face of common sense that the framers of the 14th Amendment would declare that if you engage in an insurrection, you are banned from office—that is, unless you are the President and in that case, insurrection all you want!
However, the key takeaway from this ruling is not banning Trump from the ballot. Rather, it’s that this state Supreme Court ruled Trump is “disqualified from holding the office of President under Section 3 of the 14th Amendment.” As a result of being ineligible to hold office, he is banned from the ballot. That also means if Trump were written in on the ballot by his supporters, he still would not be certified as the winner of the state’s election because he is ineligible to serve.
Now, of course, this case is only binding in Colorado—but it can be cited by people seeking to disqualify Trump in other State’s as “persuasive authority.” But as practical matter, it will take a ruling from the US Supreme Court to definitively determine whether Trump is disqualified from ever holding office again.
The indisputable truth is that Donald Trump not only “engaged in an insurrection,” he was the insurrection. This was a Donald J. Trump production from beginning to end. If Trump simply accepted he had lost the 2020 election after his lawsuits failed, there would have been no Jan 6 insurrection. But the Jan 6 attack was Trump’s back up plan in case his behind the scenes attempted coup failed. Trump not only should be barred from the ballot, but he should also already be in prison given we are now three years from his attempted coup.
Thankfully, the four Supreme Court justices in Colorado had the courage to make the correct ruling knowing they will be targeted for violence and harassment by MAGA.
As the Colorado justices summed up: “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” adding, “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Let’s hope that at least five US Supreme Court justices also “apply the law, without fear or favor” and, thus, disqualify Donald Trump from ever holding any office in the United States of America. That is what the United States Constitution mandates and what the framers of the 14th Amendment would demand.