The latest opinion denying the challenge to Donald Trump’s eligibility to run for president has caused much uproar over how the court, in the words of Colorado’s secretary of state, gave Trump a “get out of jail free card.” for the insurrection.” The frustration is understandable but short-sighted.
In fact, the opinion of Colorado District Judge Sarah B. Wallace It is a giant step toward disqualifying Trump from the election on constitutional grounds.
Colorado’s challenge is one of several brought under Section 3 of the 14th Amendment, which disqualifies officials who “have participated in an insurrection” against the United States from holding federal office. The provision gives rise to the argument that Trump is not qualified to run for president due to his role in the events of January 6, 2021.
In the final 102 pages, Wallace’s opinion concludes that the president is not “an officer of the United States” for purposes of the amendment and is therefore not disqualified from the vote. Trump hailed this as “a gigantic judicial victory.”
But the former president was either blustering or being obtuse. In fact, the opinion goes nine-tenths of the way toward acknowledging opponents’ claim and disqualifying Trump before opting for a detailed and questionable textual reading of the officer question. The ruling is much more important for how it goes against Trump than for the court’s final change of direction.
All other courts that have upheld the 14th Amendment claim to date have avoided ruling on the merits, finding it either a political question or not appropriate for the courts to determine. The Colorado judge, by contrast, held a week-long evidentiary hearing, taking testimony on the law and the facts.
Wallace’s resulting opinion methodically analyzes the evidence to determine that Trump did participate in the insurrection, something only a lower court can do. In the process, he rejected Trump’s First Amendment defense and found that his intentional incitement of the January 6 marauders outweighed any claim to free speech.
The order that will be appealed to higher courts therefore has almost everything that would be needed to disqualify Trump from the elections. His final vacillation over whether the president is an official is a discrete question of textual interpretation that any appeals court could decide differently.
In fact, the challengers’ brief treated the officers’ question almost as an afterthought, although a later discussion Op-ed by former Wall Street Journal prosecutor. General Michael Mukasey brought new attention to the issue. And the conclusion that the president is not an official has drawn fierce criticism from eminent scholars, including former conservative appeals judge J. Michael Luttig, who called it “unfathomable.”
However weak or strong the claim may be (I don’t think it is as ridiculous as others maintain), the important point is that the higher courts will decide it as a matter of law. They may well disagree with Wallace on that point while adopting his much larger conclusion that Trump participated in an insurrection.
It is widely assumed that any appeal ruling disqualifying Trump from the election would trigger the intervention of the US Supreme Court, which would have the final say. And it’s hard to imagine that the Supreme Court could or would determine that Trump participated in an insurrection without a factual record to review. In that way, Wallace’s opinion sets what had been an empty table for the court.
Of course, appellate courts could agree with Wallace on the officer issue or differ with her on other legal grounds. A higher court could, for example, reject Wallace’s definition of insurrection as “any public use of force or threat of force by a group of persons to obstruct or prevent the execution of law,” a broad definition based on a historical analysis of the appearance of the term. that is, during Reconstruction, when the 14th Amendment was adopted. Higher courts could also hold that the application of Section 3 is a political question that only Congress can answer, although that would raise other questions about the power of states to ensure that candidates meet other basic requirements for the ballot.
The bottom line, however, is that the Colorado opinion gives opponents what they needed most: a determination that Trump participated in an insurrection, while raising legal questions that higher courts would have had to answer in any case. In doing so, it breathes new life into a potential legal solution to Trump’s nightmare that might otherwise have remained quixotic.
Harry Litman is the host of Podcast “Talking about federals”. @harrylitman