Colorado judge rules Trump ‘engaged’ in insurrection, but can stay on the ballot anyway

A Colorado judge has ordered the state’s top elections official to place former President Donald Trump on the 2024 primary ballot, rejecting a lawsuit from a group of voters who argued the Republican frontrunner is constitutionally ineligible to hold office under a Civil War-era insurrection clause.

“The Court orders the Secretary of State to place Donald J. Trump on the presidential primary ballot when it certifies the ballot on January 5, 2024,” Judge Sarah B. Wallace of the Denver District Court wrote in an order issued late Friday.

Backed by the nonprofit Citizens for Responsibility and Ethics in Washington, six unaffiliated and Republican voters sued Trump and Secretary of State Jena Griswold in September, arguing that the former president’s actions in relation in the Jan. 6 attack on the U.S. Capitol make him ineligible to hold office under the 14th Amendment to the Constitution. Section 3 of the Amendment, ratified in 1868 and enforced only a handful of times in the last 150 years, prohibits anyone who took an oath to uphold the Constitution and then “engaged in insurrection” from holding office in the United States.

In a 102-page ruling, Wallace accepted many of the plaintiffs’ core claims about Trump’s actions on Jan. 6, and rejected arguments from Trump’s legal team that his messages to his supporters, including incendiary social media posts and a speech at the White House Ellipse just prior to the violence at the Capitol, was protected speech under the First Amendment.

“The Court concludes … that Trump incited an insurrection on Jan. 6, 2021 and therefore ‘engaged’ in insurrection within the meaning of Section 3 of the 14th Amendment,” Wallace wrote.

But Wallace ultimately sided with a legal theory, put forward by several conservative scholars and cited by Trump’s attorneys, holding that Section 3’s reference to individuals who have “taken an oath … as an officer of the United States” does not include 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,” Wallace wrote. “It appears to the Court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the Presidential Oath.”

Griswold is an outspoken Trump critic who has said the former president did “incite an insurrection and attack our democracy.” But during a five-day trial earlier this month her office did not take a “formal legal position” on whether Trump should be placed on the ballot, inviting “the Court’s direction” instead.

“The Court determined that Donald Trump is eligible to be placed on the Colorado ballot in the March Presidential Primary,” Griswold wrote on X, formerly Twitter, on Friday. “This decision may be appealed. As Secretary of State, I will always ensure that every voter can make their voice heard in free and fair elections.”

In a statement on the ruling, CREW President Noah Bookbinder said that the group is confident that it is “right on the facts and right on the law.”

“The court’s decision affirms what our clients alleged in this lawsuit: that Donald Trump engaged in insurrection based on his role in January 6th,” Bookbinder said. “When we filed this case, we knew it likely would not end at the district court level. We will be filing an appeal to the Colorado Supreme Court shortly. Today was not the end of this effort, but another step along the way.”

‘Spits linguistic hairs’

Wallace’s ruling represents the third time in 10 days that Trump has prevailed in a 14th Amendment challenge to his candidacy.

Earlier this week in Michigan, a judge ruled that under state law, the secretary of state has “neither the affirmative duty nor the authority” to determine whether a presidential candidate is ineligible under the insurrection clause. The Minnesota Supreme Court also blocked a similar challenge on Nov. 8, allowing Trump to appear on the state’s primary ballot, though it left open the question of whether he could be barred from the ballot in the general election.

In the Colorado case, more than 30 hours of evidentiary proceedings, witness testimony and closing arguments this month featured extensive discussion on the definition of “insurrection” and whether Trump “engaged in” one, along with complex legal disputes regarding whether the clause was “self-executing” and the specific powers and duties of the secretary of state to bar ineligible candidates from the ballot.

There was comparatively little attention paid to a theory developed in a 2021 paper by two conservative law professors, Josh Blackman and Seth Tillman, who argued that Section 3’s reference to “an officer of the United States” does not include the president.

Despite siding with plaintiffs on many other factual and legal matters in her ruling, Wallace endorsed the argument made by Blackman and Tillman. She pointed to other provisions in the Constitution in which the president and vice president are listed separately from “civil officers” and noted that “the oath taken by the President under Article II … is not the same as the oath prescribed for officers of the United States under Article VI.”

“To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3,” she concluded.

Two other conservative legal scholars, William Baude and Michael Stokes Paulsen, dismissed the Blackman and Tillman argument in a draft paper published this year, writing that such an interpretation “makes little sense” and “implausibly splits linguistic hairs.”

And Gerard Magliocca, an expert on 19th-century constitutional history who has written multiple law review articles on Section 3’s application, said during trial testimony that the view espoused by Blackman and Tillman isn’t widely shared.

“Of the draft papers that have considered the question (of whether Section 3 applies to the presidency) — there aren’t that many — their position so far is in the minority,” Magliocca said.

This story was originally published in Colorado Newsline.