Trump Disqualified from the Ballot in Colorado?
A look at the Colorado Supreme Court's radical lawfare decision to exclude President Trump from the Presidential ballot
Summary. On December 19, 2023, the Colorado Supreme Court ruled President Donald J. Trump is disqualified from the Colorado GOP Presidential primary due to the January 6, 2021, Capitol Riot. The decision is radical leftist lawfare. The Court reached its conclusions by sanctioning the use of Colorado election challenge procedure, an abbreviated procedure which deprived President Trump of fundamental fairness and discovery rights. It sanctioned the use by the lower court of “evidence” (using the term loosely indeed) from the unilateral Democrat and Never Trump January 6 Committee, which President Trump (and no other party or person adverse the Trump-hating committee) even had the ability to participate in. It disregarded the meaning of “insurrection” in Federal law and approved the lower court’s finding of
an “insurrection” where none existed. It then concluded President Trump “engaged in insurrection” by his post-election words and speech and found clearly constitutionally-protected speech was not protected at all. It reached these conclusions despite the fact, President Trump was already acquitted by the United States Senate of the identical charges in the second (bogus, illegitimate) impeachment. It applied Article 3 of the 14th Amendment to the Presidency when it should not have. There is more, but you get the idea.
The decision is one of the most outrageous opinions I read in my entire 27 year legal career.
Let’s take a closer look.
The article. By now, everyone in America heard the Colorado Supreme Court ruled President Donald J. Trump is disqualified from the Colorado GOP Presidential primary due to the January 6, 2021, Capitol Riot. Misinformation about this decision, numerous other similar court cases (all of which ruled in President Trump’s favor) and the nature of the claims abound in Fake News Media reporting. Let’s take a closer look at what this is all about.
In various states around the country, individuals filed suit challenging President Trump’s eligibility for the Presidency claiming his actions on January 6, 2021, disqualified from office under the provisions of Section 3 of the 14th Amendment to the United States Constitution. Section 3 of the 14th Amendment provides:
There are a host of problems with the Colorado Supreme Court decision, including state law issues regarding whether the claim was properly brought under the Colorado Elections Code and thereby depriving President Trump of Due Process through an expedited elections action without affording time for deposing witnesses and experts and engaging in other discovery. I will not delve into those issues, instead focusing on the blatant factual and Constitutional errors in the Colorado opinion.
Issues – There Was No “Insurrection” on January 6, 2021
First and foremost, January 6, 2021, was a riot, not an insurrection. I covered this at length in a previous substack post. As I stated in that substack post, “Not one single person has been arrested or charged with entering the Capital Building with a firearm on January 6, 2021. Not one single person has been arrested or charged with discharging (shooting) a firearm in connection with the January 6, 2021, Capitol protests. Not one single person has been arrested or charged with brandishing (pointing or displaying) a firearm at the Capitol protests.” No one, let alone President Trump, was charged with Insurrection under the applicable Federal statute, 18 U.S.C. §2283. No one was charged with attempting the overthrow the government under the Federal “seditious conspiracy” statute, 18 U.S.C. §2384. The only people charged under the “seditious conspiracy” statute were the “Oath Keepers,” but even they were only charged in the indictment with attempting to prevent the transfer of power by force, not with overthrowing the government.
Furthermore, the term “insurrection” has been in use in Federal law for over 200 years through the Militia Act of 1795 and the Insurrection Act of 1807. These acts live on today (in modified form) in Federal law as 10 U.S.C. §251, et. seq. This law allows the President to call “the militia of any State” into service when “rebellion” makes it “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings . . ..” This law specifically requires the President to “order the insurgents to disperse and retire peacably . . . within a limited time” whenever the President considers it “necessary to use the militia or armed forces under this chapter.” 10 U.S.C. §254. (Readers will note this provision of law remains, nearly verbatim from the original Militia Act of 1795.)
Historically, the President’s “proclamation” under the Insurrection Act and, thereafter, sending in Federal troops, defined “insurrection.” This is covered at length by recent commentators on the issue. See Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, William & Mary Bill of Rights Journal, Volume 1, Issue 5 (2021), at pgs. 180-181. As the commentators note:
Of course, no such Presidential proclamation was made (or necessary) in this case. Readers may recall the United States Senate issued an extensive report analyzing the law enforcement and intelligence failures surrounding the January 6 debacle. This report reflects that law enforcement was quite capable of handling the Capitol Riot, but failed to do due to various failures or shortcomings. The Riot got “out of hand” largely due to lack of communication, lack of awareness and lack of preparation on the part of the agencies tasked with dealing with it, according to the Senate Report. Importantly, the Report reflects President Trump, in a meeting on January 3, 2021, approved the use of District of Columbia National Guard to support law enforcement on January 6. See pg. 77. Unfortunately, only the DC Metro Police requested National Guard assistance and then, only requested a small number of unarmed NG troops for assisting with traffic and crowd management. See pg. 75.
And who was in charge of the U.S. Capitol Police and Capitol Security on January 6, 2021? None other than U.S. Speaker of the House, Democrat Nancy Pelosi. (Pelosi, interestingly enough, just happened to have her filmmaker daughter on hand to record some of the drama, how about that?) The Chief of the US Capitol Police at the time, Steven Sund, requested National Guard help before January 6, but Speaker Pelosi refused his requests. (Chief Sund had quite a lot more to say about the debacle as well, none of it good for Federal law enforcement, intelligence agencies or others bearing responsibility for Capitol security.)
The host of law enforcement and intelligence agency failures leading up to, and on, January 6, coupled with the Federal informants embedded with groups attending J6 rallies, with DC Metro Police officers admitting on video they were undercover in the crowd on J6, and Federal efforts to protect some of the more high profile agitators, like Ray Epps, lead plenty of observers to conclude the entire Capitol Riot was a Federal inside job. (If and when the truth ever comes to light, we will probably learn a combination of undercover State and Federal agents, Antifa militants posing as “MAGA” supporters, along with other agents provocateur precipitated the entire riot.)
Naturally, the Colorado Supreme Court made no mention or reference to any of the above (why let the truth stand in the way of a good story), but rather endorsed the lower court’s admission of transcripts and documents from the January 6 Committee. As I cover in the Free Chapter to Volume Two of the Fake News Exposed about Trump series, the J6 Committee was a farce and its findings were largely based on incompetent evidence consisting of universally one-sided “interviews,” one-sided evidence gathering (only the Democrats and Trump haters questioned witnesses and compiled evidence) and, oftentimes utterly incompetent hearsay or hearsay within hearsay or hearsay within hearsay within hearsay “evidence.” Further, President Trump was completely shut out of the entire operation. Yet, the Colorado Supreme Court sanctioned the admission of “evidence” from this disgusting, unfair political side show to disqualify President Trump under Article 3. What an unfathomable farce.
Nevertheless, there was not any “insurrection” within the meaning of Section 3 of the Fourteenth Amendment. Keep in mind, this Amendment was passed to keep former Confederates who fought for the South in the Civil War out of Congress. While the judge who heard the Colorado election challenge found the events which transpired on January 6 were an “insurrection,” that decision is ludicrous. And the Colorado Supreme Court’s endorsement of it is equally ludicrous.
Second – Trump did not “engage” in any Insurrection
The claims against President Trump are completely based on what he said during his speech on January 6, 2021, and in his public statements challenging the rigged election in 2020. Believe it or not, a majority of the Colorado Supreme Court not only upheld the lower court’s finding that the January 6, 2021, Capitol Riot was an “insurrection,” but that President Trump “engaged in” the phony, non-existent “insurrection” by his claims that the (obviously rigged) 2020 Presidential election and through his speech on January 6, 2021. Read this lunacy for yourself. I am not making it up.
As I previously covered in yet another previous substack post, President Trump did not incite any riots in his January 6 speech. He literally called for his supporters to “peacefully and patriotically” make their voices heard and stated he and his supporters were going down to the Capitol to “cheer on our brave senators and congressmen and women.” Like the Fake News Media and lawless January 6 Committee and House Democrats under former Speaker Nancy Pelosi, the Colorado Supreme Court makes clever use of ellipses and selectively quotes the handful of passages in the speech where President Trump said “we fight” and “we fight like hell” to reach their grossly erroneous conclusion that he “engaged in” insurrection. Grotesque.
President Trump’s speeches and public statements, on January 6, 2021, and prior to that about the rigged 2020 election are political speech protected by the First Amendment to the United States Constitution. As I cited in the previous substack post, there are statutes in the District of Columbia covering inciting riots, but President Trump was not charged under those statutes because his speech on January 6 and other public statements did NOT violate the law. As I noted previously, one of the former Washington, D.C., prosecutors who enforced these laws so often he was dubbed the “protester prosecutor,” a lawyer named Jeffrey Scott Shapiro, wrote an article for the Wall Street Journal, published on January 10, 2021, entitled, “No, Trump Isn’t Guilty of Incitement. Inflaming emotions isn’t a crime. The president didn’t mention violence, much less provoke it.” In the article, Mr. Shapiro outlines what the law is and why President Trump did not come remotely close to violating it:
Nevertheless, the lower court allowed extensive documentation from the January 6 Committee propaganda campaign (which, readers may recall was compiled without regard to evidentiary rules or even proper Congressional procedure and without any participation of anyone supporting President Trump). The Colorado Supreme Court endorsed the admission of this dubious “evidence” from the rabidly partisan, anti-Trump, anti-Republican J6 Committee and used that “evidence” to cobble together tweets, “liked” tweets, comments and public statements by President Trump and found the cumulative effect of his speech, and specifically, his January 6 speech itself, was not protected by the First Amendment. I am not making this insanity up. Read the Colorado Supreme Court opinion for yourself. It is unbelievable.
Third – Article 3 of the 14th Amendment is not Self-Executing
Not only did the Colorado Supreme Court need to sanction the lower court’s finding of an “insurrection” where none existed and find that President Trump “engaged in” the non-existent “insurrection” by his words (or tweets or “likes” of tweets), but they also had to conjure that private voters in Colorado could sue to enforce Article 3 of the 14th Amendment. And they did just that.
The Colorado Supreme Court held that some voters in Colorado had the power to file a private action in Colorado State Court to declare President Trump ineligible under Article 3 of the 14th Amendment, despite the fact no Federal statute enabling such a finding even exists today. Finding a private voter could bring such an action makes Article 3 of the 14th Amendment “self-executing.”
Importantly, Section 5 of the 14th Amendment states:
After the Civil War, Congress passed a law, The Enforcement Act of 1870, which among other things, included provisions for the Federal enforcement of the prohibition of Article 3 of the 14th Amendment. The problem is this enforcement statute (or the portion relevant here) was repealed in 1948. This is addressed in one of the dissenting opinions in the Colorado case:
In the absence of statutory authority from Congress for the adjudication of such a challenge, there simply is no basis for allowing such a private challenge. Otherwise, one could wind up with 50 states issuing hundreds of conflicting opinions on the same question. That, much like the rest of the Colorado Supreme Court’s opinion, would be ludicrous.
Fourth – Article 3 of the 14th Amendment probably does not cover the Presidency
This issue arises in two contexts in Article 3 of the 14th Amendment. Recall, Article 3 is directed to individuals who previously took an Oath to support the Constitution and then at the offices from which such individuals, provided they engaged in insurrection, are prohibited from holding or qualifying for. In both contexts the Presidency is probably not included.
First, what offices are expressly not listed in Article 3? The Presidency and Vice Presidency. Only electors for those positions are referenced and “electors” pertain to the individuals appointed to the Electoral College for purposes of determining the winner of the Presidential election.
Consider this: Article 3 uses the express language, regarding the ineligibility to serve, applying the disqualification to people who took an oath “to support the Constitution of the United States.” The United States Constitution expressly states United States Representatives and United States Senators “shall be bound by Oath or Affirmation, to support this Constitution.” (See Article VI of the U.S. Constitution.) The Oath for the President of the United States is found in Article II, Section 1 of the U.S. Constitution and states:
Thus, the President is not delineated in Article 3 (an obvious omission, don’t you think?) and he takes an Oath that does not include any reference to “support” of the Constitution, but uses different language altogether (“preserve, protect and defend”).
Furthermore, the only way to include the Presidency within Article 3 is to broadly construe “any office . . . under the United States” to include the Presidency (as an office one might be disqualified from) and then to broadly construe “officer of the United States,” to include a former President (as the person who previously took the required Oath).
The problem here is United States Supreme Court jurisprudence ties the meaning of “officers of the United States” to the Appointments Clause of the U.S. Constitution and to inferior offices created by Congress. See Buckley v. Valeo, 424 U.S. 1 (1976) and Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010) (wherein the Supreme Court observed “The people do not vote for the ‘Officers of the United States.”)
There is quite a lot more to this analysis. For those interested in a deeper dive, see Is the President an "Officer of the United States?,", New York University Journal of Law & Liberty, Volume 15, Issue 1 (2021).
By this rationale, the Presidency is not a position from which one may be disqualified by violating a previously taken Oath through insurrection and a former President is not a person who took an Oath he might violate in the first instance.
While there is scholarly authority in disagreement with this interpretation of Article 3 (the law review article cited earlier, Disloyalty & Disqualification, is one), hopefully, readers understand just how many questions the Colorado Supreme Court had to decide against President Trump to reach its ridiculous conclusion. This was yet another one.
Trump was already acquitted by the Senate of these very charges
The second literal farce of an impeachment of President Trump by the Democrat-controlled United States House of Representatives on January 25, 2021, charged President Trump with allegedly engaging in insurrection under Article 3 of the 14th Amendment. Read it for yourself.
On February 13, 2021, the United States Senate acquitted President Trump of the charges in the Second Impeachment.
There is simply no basis for a State Court, in Colorado or anywhere else, to find a President of the United States ineligible under Article 3 of the 14th Amendment when that same President was acquitted of that PRECISE charge in an impeachment proceeding before the United States Senate.
This is a question of first impression, meaning no courts have ruled on it, but think about the implications. The House Dems claimed Trump did the same thing the petitioners in Colorado claimed. The United States Senate acquitted Trump of precisely the same charges. Part of the penalty for being convicted on the impeachment articles is “removal from Office and disqualification to hold and enjoy any Office of Honor, Trust or Profit. . ..” (See Article 1, Section 3 of the United States Constitution). Despite the fact, the United States Senate acquitted President Trump of these same charges, a district court in Colorado gets to find to the contrary (in an elections case, without proper discovery and relying, in part at least on utterly incompetent evidence gathered by the J6 Committee)? This is a joke.
The Colorado Supreme Court decision is unfathomable
This decision is not just ludicrous, it is unfathomable. The opinion reads like it was written by an activist Democrat lawyer, not a court. The fact the Court allowed an abbreviated election challenge procedure to be used to disqualify a former President from office, depriving him of the ability to mount an adequate defense, is unbelievable. Further, the Court sanctioned lower court’s admission of “evidence” from the one-sided, disgusting political smear campaign masquerading as Congressional oversight (the J6 Committee), despite the fact the Committee and its Trump-hating extremists operated completely unilaterally without any opportunity for the President to defend himself, despite its heavy-handed, obtrusive techniques and its reliance, in many instances, on utterly unreliable, incompetent “evidence.” This “evidence” tainted the entire process and should have resulted in an immediate reversal. Additionally, all of this coupled with the fact the Court decided one highly contested, novel legal issue after another against President Trump is highly suspect as well.
What is next?
The United States Supreme Court will have the last say on these questions. The Colorado Supreme Court stayed its own decision pending review by the United States Supreme Court. The opinion states, at page 133:
President Trump and his legal team vowed to seek review of the decision in the United States Supreme Court. Let us hope he does. And let us hope SCOTUS reverses this fringe ruling and puts an unceremonious end to the nationwide lawfare being waged against President Trump.
(My new book Fake News Exposed: 25 of the Worst Media Lies about Conservatives, Guns, COVID and Everything Else is out at Amazon. You may also pick up a copy of one of my other books at Amazon as well.)