An initial judgement was issued in the Colorado lawsuit attempting to prevent Donald Trump from appearing on the state's upcoming ballots as a consequence of his actions involving January 6, 2021. Though the judge's opinion stated that Trump's actions clearly constituted an insurrection, the judge ruled the 14th Amendment's language could not support an interpretation that it banned a candidate for PRESIDENT from appearing on a ballot to win the office of the Presidency.
You can read the entire ruling located here:
https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdfThe full ruling is highly recommended reading and the judge's opinion references a litany of arguments made by Trump's attorneys which are simply astounding from a legal and political perspective. Other aspects of the judge's opinion concisely summarize the interactions between state election law, obligations of the Secretary of State in following to election laws and how those state processes intertwine with federal law. The combination of arguments from the Trump team and the clear summary of the legal and administrative processes cited by the judge make the judge's ultimate decision even harder to comprehend.
When reading the ruling or this analysis of it, it's important to remember the actors in the case:
- petitioners – six citizens of Colorado filing a motion in Colorado State court to have Trump's name removed from Republican primary ballots as ineligible under the Fourteenth Amendment – it's worth noting, four of the six petitioners were register Republicans, the other two were independent voters
- respondent – Jena Griswold, the Secretary of State for Colorado, responsible for enforcing election laws in the state – it's worth noting, she maintained a neutral position throughout this case, saying legitimate issues needed adjudication but that she could not act without a court ruling
- intervenors – Trump's legal team and the Colorado State Republican Central Committee, who both sought to file motions to dismiss the suit by the petitioners
January 6 Committee Findings as Hearsay?
Trump's lawyers objected to the introduction of the Congressional report on January 6 under grounds of hearsay. The judge rejected that argument, citing prior precedent in Colorado and federal law and quoting from those cases: "Hence, the party challenging the admissibility of a public or agency report … bears the burden of demonstrating that the report is not trustworthy."
The judge itemized four factors in a prior ruling Berry that must be weighed in a decision to reject such reports – 1) timeliness, 2) bias, 3) expertise and 4) motivation – then stated the January 6 report sails over the first three and that Trump's lawyers failed to demonstrate signs of any issues triggering test #4, particularly given the fact that the contents of the final report were approve unanimously by the entire committee.
That portion of the ruling ends with this statement:
Furthermore, while Trump spent much time contesting potential biases of the Committee members and their staff, he spent almost no time attacking the credibility of the Committee’s findings themselves. The Hearing provided Trump with an opportunity to subject these findings to the adversarial process, and he chose not to do so, despite frequent complaints that the Committee investigation was not subject to such a process.6 Because Trump was unable to provide the Court with any credible evidence which would discredit the factual findings of the January 6th Report, the Court has difficulty understanding the argument that it should not consider its findings which are admissible under C.R.E. 803(8).
The Findings of Fact section of the ruling (a lengthy portion), included this:
145. In the context of the speech as a whole, as well as the broader context of Trump’s efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021 and his long-standing pattern of encouraging political violence among his supporters, the Court finds that the call to “fight” and “fight like hell” was intended as, and was understood by a portion of the crowd as, a call to arms. The Court further finds, based on the testimony and documentary evidence presented, that Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.
The Conclusions of Law section begins with this statement:
209. The Court previously held that pursuant C.R.S. § 1-4-1204(4) the burden of proof in this matter is preponderance of the evidence. That is the burden the Court has applied. However, the Court holds that the Petitioners have met the higher standard of clear and convincing evidence.
In other words, in this matter of civil law, the case presented by the "Petitioners" suing to block Trump's appearance on the ballot didn't just meet the minimum "preponderance" threshold of evidence but a higher level of confidence – "clear and convincing." It isn't exactly clear how this criteria regarding use of a "public or agency report" might apply in the criminal cases also tied to January 6. Those standards may differ. However, it is an interesting first peek into how that collection of facts is interpreted by a judge with more than a year's experience.
Define the Word "Insurrection"
The text goes on to examine the factual evidence of Trump's participation in an insurrection. The findings start by contrasting two definitions of the term insurrection. One was taken from the 1828 edition of Noah Webster's dictionary, a definitive reference of the era when the Fourteenth Amendment was crafted. The other definition was submitted in motions filed by Trump's attorneys.
238. Intervenors have offered an alternate definition of insurrection as “the taking up of arms and preparing to wage war upon the United States.”
239. However, in the context of Section Three, and in accordance with the historical understanding, the Court finds that such insurrection must be “against” the “Constitution of the United States” and not against “the United States” as the Intervenors would suggest.
240. Considering the above, and the arguments made at the Hearing and in the Parties’ proposed findings of fact and conclusions of law, the Court holds that an insurrection as used in Section Three of the Fourteenth Amendment 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.
241. The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of “insurrection.”
Stop for a second and re-read that text. CAREFULLY.
Trump's attorneys presented an argument IN COURT attempting to escape consequences under laws related to insurrection by somehow softening the definition of the word itself from an attack upon the The United States Constitution to merely an attack upon The United States. They weren't arguing about the cause and effect relationship between his conduct and the events of January 6, only that those effects weren't actions against the Constitution / existence of the government itself, only against elected officials and police working in service of that Constitution attempting to fulfill one of its core obligations.
Incitement Versus Engagement
Besides arguing about the definition of insurrection and any intended target of such actions, the Trump lawyers further argued about the definition of incitement versus engagement. The applicable section of the 14th Amendment reads:
Section 3 Disqualification from Holding Office
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The definition of "engaged" thus becomes crucial. Again, quoting from the opinion,
247. Trump’s primary argument that incitement fails to meet the constitutional standard of “engagement” stems from the Second Confiscation Act, passed in 1862. The Second Confiscation Act, among other things, made it a crime for any person to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection.” 12 Stat. 589, 590.
248. The argument, generally, is that the Second Confiscation Act distinguished between “incitement” and “engagement” by virtue of listing them separately, thereby suggesting that they were understood to be separate activities. Further, he argues, as Section Three of the Fourteenth Amendment was patterned, in part, on the Second Confiscation Act, and based disqualification on “engagement,” and not “incitement” or “setting on foot,” Congress did not intend to disqualify those who merely incited insurrection or rebellion. Lastly, Trump argues that certain cases in Congress in 1870 suggest that the Congressional understanding of Section Three did not include incitement as engagement.
So in this context, Trump's lawyers are not arguing that he didn't INCITE the riot on the capital. They are arguing he didn't ENGAGE in the riot and therefore the insurrection clause doesn't apply and he should be able to appear on the ballot. That's the actual linguistic jujitsu his lawyers were attempting here. The immediate legal peril involves the word "engage"? Okay, we'll cop to incitement but make an argument that "incitement" isn't "engagement" and voilia! We're off the hook. (Never mind pending criminal litigation in two other venues...)
The judge considered these competing arguments and, while determining examples provided by the petitioners (those trying to block Trump's appearance on the ballot) were not conclusive as to contemporary understanding by Congress of the term "engagement", ruled (correctly) that in this context, incitement IS a component of engagement and that Congress did NOT intend to deliberately exclude "incitement" by the language in the amendment not explicitly listing it.
The Office of President
The judge ultimately ruled the Secretary of State cannot exclude Trump from ballots for two core reasons. First,
216. However, in the Court’s view there is a difference between the Secretary having the authority to prohibit a candidate from being put on the ballot based on what Ms. Rudy described as “an objective, knowable fact” and prohibiting a candidate from being put on the ballot due to potential constitutional infirmity that has yet to be determined by either a Court or Congress. The Court holds that the Secretary cannot, on her own accord, keep a candidate from appearing on the ballot based on a constitutional infirmity unless that constitutional infirmity is “an objective, knowable fact.” Here, whether Trump is disqualified under Section Three of the Fourteenth Amendment is not “an objective, knowable fact.”
The judge continues by stating that under state law, the Secretary of State alone cannot exclude a name from a ballot for compliance with state election law but requires a court ruling to support any such exclusion and that state law grants the state court that authority.
The core of the judge's opinion came down to a decision about whether the Fourteenth Amendment applies to the office of President and whether it can be stated that Trump as a matter of fact has violated the terms of the Fourteenth Amendment. The judge cited testimony from a history professor who in turn cited actual debate in Congress as the amendment was being drafted in which Senators explicitly stated the intent that the Presidency was an "office" under the terms of the amendment. The judge then writes:
301. The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.
302. To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional. Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015) (finding that Congress intended to exclude rules or regulations when it included only the word “law” versus elsewhere where it used the phrase “laws, rule or regulation”).
The opinion then ends with this:
314. 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 Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). 21 Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.
315. As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.
The logic as summarized by the judge is that the language involved with these statutes must be interpreted such that when language ELIMINATES rights or imposes penalties, terms of that language must be interpreted as NARROWLY as possible. When the generality of language raises doubt about meaning or intent, that language must be interpreted in a way which (essentially) gives the benefit of the doubt and AVOIDS eliminating a right or imposing a penalty.
The final result of the opinion is – frankly – bizarre.
The judge held that evidence compiled by the January 6 committee and submitted in this case makes clear Trump "engaged" in an insurrection.
The judge confirmed the opinion of the Secretary of State that the Secretary of State cannot ALONE exclude a candidate from a ballot due to a perceived failure of qualifications but must obtain a ruling from a court to impose an exclusion from a ballot.
The judge held that Trump's argument that he may have only merely "incited" the insurrection but did not actively "engage" in insurrection was flawed and that "incitement" was a form of "engagement."
The judge then held that no reliable evidence can be found that the original language and intent of the Fourteenth Amendment was to include the office of President in the scope of applicable positions subjected to the restriction. This essentially argues that the original backers explicitly EXCLUDED the Presidency as an "office" despite using the term "any office".
At the same time, the opinion says Trump has not been literally found to have a "constitutional defect" in his eligibility because he hasn't actually been convicted of insurrection in a court. It seems clear those that drafted the Fourteenth Amendment did not expect every member of the Confederacy Army and those who supported the Confederacy to be officially convicted of a crime to put something on the record. Yet the amendment explicitly bans ANY such personnel from holding ANY office at the federal or state level. It clearly relied upon a process by which local election officials would establish a due process for adjudicating such claims but says nothing about requiring conviction.
It's almost like the language assumed there was honor even among Confederate soldiers and Confederate politicians and few would make the attempt in the first place. Yet in this case, the judge explicitly agrees with a Congressional Committee that found widespread evidence of "engagement" and "incitement" of insurrectionist activity by Trump. He's not "convicted" but the acts and evidence should speak for themselves. Yet, for the office of President, the "benefit of the doubt" is given to the "potential defective candidate" rather than the public's right to keep enemies of the Constitution AWAY from the Constitution.
Constitutional Grammarian Office
Virtually any recent court opinion at any level regarding nearly any contentious issue involving economics and civil rights seems to hinge upon these types of seemingly bizarre, abstract, existential, navel-gazing questions:
- Does incitement of a riot count as engagement?
- Is the "office" of President an "office" of government or an "executive office"?
- Is the President an "officer" of the United States government or an "executive officer"?
- In poorly written language, does a perceived descending priority of explicitly listed nouns take precedence over a final clause that says "any nouns"?
- Did the authors of a specific sentence in a statute or constitutional amendment explicitly incorporate or exclude the use of an "Oxford comma" when itemizing applicable targets or penalties of a statement that can alter the interpretation of said language?
Such debates are created by multiple processes, all contributing to varying degrees:
- Evolution of language itself, as possibly archaic terminology gets remapped to current circumstances without amending underlying laws to reflect current vocabulary.
- Changes in legal / social norms that adapt old language to new interpretations of reality without formally attempting to update the language involved for a clear one-to-one mapping.
- Purposeful distortion of previously well-understood, consistently interpreted language by partisan organizations to achieve aims not possible by passing new legislation.
- Sloppy language written with intentional ambiguity to facilitate passage into law ("if people knew what I really meant, it wouldn't pass…")
- Sloppy language written in ignorance of basic logic, grammar and English by Representatives and Senators (and their hidden lobbyist minions) made worse by the unique exposition style within the legal profession.
While Americans often hear references to people "running for elected office", it seems far less common to here references to the "office of Senator" or "office of Representative." Ask most Americans about the "Oath of Office" and they will picture a ceremony swearing in a President. The Constitution itself refers to the Presidency as an "Office", not an executive office. Any attempt to interpret special exclusions from laws because of the "unique" nature of the Presidency are supporting the concept of a unitary executive that grants far more power to a single person than ANY of the founding fathers could have imagined or ever approved.
In the spirit of the Congressional Budget Office, Congress also needs to create and fund an independent Constitutional Grammarian Office -- the CGO. The CGO would review all proposed legislation, score it for reading level, compliance with basic standards of grammar, punctuation of lists, subject / verb / object agreement and use of imprecise lingo that may not survive over time. Bills falling below a certain score or matching specific no-go bogeys would be prevented from reaching the floor in either chamber for a vote until corrected.
But is this really necessary? A week's worth of news makes it easy to identify at least twenty members of Congress who might not even operate above an eighth grade reading level. Rulings from one new appointee to the Federal bench in Fort Pierce, Florida make it clear reading comprehension issues exist as well in the judiciary who are going to have to interpret new laws as well. It seems any effort to raise the baseline of clarity in ANY new legislation would be a wise investment.
Honestly, it isn't clear what measures can eliminate some of these existential risks facing the United States. But it's crystal clear that we shouldn't be distracted by arguments about whether a President is an "officer" of the United States Government. Or if a law written over one hundred and fifty years ago meant to exclude the top elected office in the country when it explicitly included the words "any office." Or if a person who "incited" a riot and communicated with those who definitely "engaged" in the riot also "engaged" in said riot. The country lacks the brain cells and the time required by these distractions and has much more serious issues needing resolution.
WTH
