[OPINION and ANALYSIS]
[ Author’s Note: What follows is a condensed summary of the Colorado case holding the Trump is disqualified from holding public office. This summary consists almost exclusively of extensive direct quotes from the Court’s opinion. First, however an introductory point is made by the author of the this article concerning the arguments of some that the voters should have the right to decide whether Trump should be re-elected, and that to take him off the ballot is inherently wrongful and, worse, an undemocratic infringement on the right of voters to select their leaders. Those introductory points are then followed by the summary of the Colorado Supreme Court’s opinion which in turn are followed by some end notes and a few closing thoughts]
[The author of this article is an Active Member of the Virginia State Bar in good standing.]
[The article below has been supplemented by another article on this site. See “The Eroding Rule of Law” posted February 11, 2024. Click on the link below:
https://reasonandbalance.com/the-eroding-rule-of-law/
PRELIMINARY THOUGHTS
“Let the voters decide.” Many, particularly on the political right, seem to think it totally proper to just let the voters decide at the next election whether Trump was an insurrectionist. Beyond that however some even go so far as to suggest that even if he was or is an insurrectionist they believe that the voters have a right to decide whether want to elect him as President. They say just allowing everyone to vote on something is the truly democratic thing to do, and that by denying them the right to vote for Trump it is Trump’s opponents (not Trump) who are guilty of threatening democracy.
While this position has some superficial appeal to many, the fact is that we Americans live in a representative democracy that is governed by our Constitution and other applicable laws. In our democracy, voters only get to vote for the candidates we choose for the House of Representatives, the U.S. Senate and for President, and we can do so only on legally established election days. It’s our representative elected officials that do everything else for us, such as pass laws and adopt a budget. Voters do not get to vote on anything else unless a right to vote on a different matter is expressly granted in the Constitution or by a pre-existing duly enacted statute. In a nation of 330 plus million people having ad hoc impromptu elections could not and would not be remotely feasible and attempting to allow same would invite societal chaos.
Moreover, and very importantly, no one, regardless of whether they are members of the U.S. Senate, the House of Representatives, the President or even members of the general public can vote for or do anything else that violates the Constitution. The Constitution is the supreme law of the land and respect for it is fundamental to maintaining the rule of law. Neither Congress, the President nor the American public can pass a law that violates the Constitution. For example, Congress can’t pass a law that violates the First, the Fourteenth or any other provision of the Constitution. Similarly, voters have no right to vote to establish a law that would violate someone’s right to Free Speech and they have no right to vote to establish a law that would violate the Equal Protection or any other provision of the 14th Amendment.
In short, the right to vote in the U.S. is limited to the right to vote for the election of candidates to public office who are qualified to hold the public office that they seek under the qualification rules that are specifically set forth in the Constitution and/or by other applicable statutes. In short, democracy in America does not, and never has been, deemed to include the right of voters to vote on any and all issues that the voters deem appropriate. That’s not the way American democracy works and never has been. Were this not the case it would be theoretically possible, for example, for American voters to disregard our Constitution’s the age and citizenship requirements and elect a newborn Russian infant to be President of the United States.
The point is that the Constitution’s qualification and eligibility requirements were adopted so that the public would not make foolish election decisions in the heat of the moment when passions are high but the capacity for rational thought low. That’s what lynch mobs do—they ignore preestablished legal rules (that are designed to ensure some element of fairness) and make foolish often devastatingly regretful and tragic decisions in the heat of the moment.
The case is styled (titled) Anderson v. Griswold, 2023 CO 63, 23SA300 (Colo. Dec 19, 2023), in the vitally important matter of whether a state can keep former President Donald Trump off the Republican primary ballot. The opinion states that its reason for holding that state officials can keep Trump off of the ballot is that the record in this case proves by clear and convincing evidence that Trump engaged insurrectionist activities in connection with his involvement in the January 6, 2021 riots at the nation’s Capitol when Congress met to certify the election results of the 2020 Presidential election. The case turns not only on several Colorado state laws, but much more importantly, the court’s interpretation of Section 3 of the Fourteenth Amendment to the United States Constiution.
This is a 4 to 3 decision. A major point the dissenters make is that Trump has never been criminally convicted of insurrectionist activities and for that reason the state: (i) could not keep Trump off the ballot and, (ii) more importantly, could not hold that Trump was disqualified from holding public office (including the Presidency) under Section 3 of the 14th Amendment to the United States Constitution. The majority opinion, however, noted that there was a five day evidentiary trial, and that the trial judge had ample reason to find based on clear and convincing evidence that Trump had in fact committed insurrection. [Note: Generally speaking, “clear and convincing” is the highest standard of proof required in civil cases where extraordinary relief is sought. It is higher than the “preponderance of the evidence” standard that is applicable in most civil cases. However, it is not as high as the “proof beyond a reasonable doubt” standard applicable in criminal cases.] The trial court and the majority opinion do seem to rely in significant part on the record of the Congressional committee that investigated the events of the January 6th riot. Trump’s position was that that the Congressional committee was biased because it only had two Republican members, referring to Representatives Cheney and Kinzinger and that a case such as this required more time than the 5 days it got at the trial court.
The Colorado Supreme Court also noted that President Trump’s statements that encouraged the January 6th riot were not protected Free Speech under the First Amendment, largely because speech which incites violence is not protected under the First Amendment. It cites prior case law in support of this point.
Having said the foregoing below is a summary of the Colorado Supreme Court’s opinion. This summary consists almost exclusively of extensive direct quotes from the Court’s opinion.
VERBATIM SUMMARY OF THE COLORADO SUPREME COURT’S OPINION
Anderson v. Griswold, 2023 CO 63, 23SA300 (Colo. Dec 19, 2023)
The Electors and President Trump sought this court’s review of various rulings by the district court. We affirm in part and reverse in part. We hold as follows:
- The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.
- Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.
- Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.
- Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error.
- The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.
- The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”
- The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.
- President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.
¶5 The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.
¶6 We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. 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.
¶7 We are also cognizant that we travel in uncharted territory, and that this case presents several issues of first impression. But for our resolution of the Electors’ challenge under the Election Code, the Secretary would be required to include President Trump’s name on the 2024 presidential primary ballot.
Therefore, to maintain the status quo pending any review by the U.S. Supreme Court, we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court..
END OF THE COLORADO SUPREME COURT’S CASE SUMMARY
MICHIGAN CASE
Since this piece was written the Supreme Court of Michigan has refused to hear a similar case
in which the petitioners have also sought to remove Trump from the Republican primary ballot in Michigan. Significantly the Michigan Supreme Court ruled that they were not persuaded that the issues presented in the case should be reviewed at this time. In other words, that the case is premature. There is one written dissenting opinion that is very enlightening in pointing out the significant differences between Michigan election laws and the election laws of Colorado.
If one tries to analyze the two cases together, the bottom line is that a state’s election laws do play a significant role in the analysis of any case on the Trump-ballot issue. See LaBrant v. Secretary of State and Trump which is linked within the following Guardian article: https://www.theguardian.com/us-news/2023/dec/27/donald-trump-michigan-ballot-supreme-court-decision. To generalize however, if the issue concerns primary ballots, it appears less likely that the courts are going to get involved than if the ballot in question is the general election ballot. This is largely because the applicable statutes appear to give political parties leeway to do whatever they want in terms of naming candidates on a primary ballot. However, if the issue in question centers on either the general election ballot and/or a candidates qualification for office then the courts are more likely to get involved.
Then beyond the above an important determining question will be: Does applicable election law (which, interestingly, is usually state law even in federal elections) give election officials the right or the duty to remove candidates who are unqualified for office? And the answer to this last question will, also depend on how Section 3 of the 14th Amendment to the U.S. Constitution is interpreted, particularly on the question of whether it requires a prior conviction of insurrection before a candidate is disqualified from holding office.
It will be very interesting, not to mention critically important, to see the extent to which the United States Supreme Court and/or perhaps Congress attempts to federalize future federal elections by creating one set of national rules governing federal elections in every state. It would probably be improper for the U.S. Supreme Court to do so, unless it first found that certain aspects of many state election laws to be an unconstitutional infringement on federal power. Stay tuned but this country might well see a significant tug of war over the power of states to control or heavily influence federal elections.
End of Michigan Case Analysis
(The End Notes below are extensive quotes the author has selected from various portions of the Colorado Supreme Court’s opinion. The numbers assigned to them and the bold highlighting, however, are the authors. Following the End Notes is our short conclusion called “further points to consider”)
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.1.
¶11 On January 6, 2021, pursuant to the Twelfth Amendment, U.S. Const. amend. XII, and the Electoral Count Act, 3 U.S.C. § 15, Congress convened a joint session to certify the Electoral College votes. President Trump held a rally that morning at the Ellipse in Washington, D.C. at which he, along with several others, spoke to the attendees. In his speech, which began around noon, President Trump persisted in rejecting the election results, telling his supporters that “[w]e won in a landslide” and “we will never concede.” He urged his supporters to “confront this egregious assault on our democracy”; “walk down to the Capitol . . . [and] show strength”; and that if they did not “fight like hell, [they would] not . . . have a country anymore.” Before his speech ended, portions of the crowd began moving toward the Capitol. Below, we discuss additional facts regarding the events of January 6, as relevant to the legal issues before us.
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.2.
Section 3, of the Fourteenth Amendment to the United States Constitution provides:
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. [emphasis added.]
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.3.
¶30 The Electors’ claim is grounded in sections 1-4-1204 and 1-1-113 of the Election Code. They argue that it would be a breach of duty or other wrongful act under the Election Code for the Secretary to place President Trump on the presidential primary ballot because he is not a “qualified candidate” based on Section Three’s disqualification. § 1-4-1203(2)(a), C.R.S. (2023). The Electors therefore seek an order pursuant to section 1-1-113 directing the Secretary not to list President Trump on the presidential primary ballot for the election to be held on March 5, 2024 (or any future ballot).
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.4.
But does the U.S. Constitution authorize states to assess the constitutional qualifications of presidential candidates? We conclude that it does. ¶52 Under Article II, Section 1, each state is authorized to appoint presidential electors “in such Manner as the Legislature thereof may direct.” U.S. Const. art. II, § 1, cl. 2. So long as a state’s exercise of its appointment power does not run afoul of another constitutional constraint, that power is plenary. Chiafalo v. Washington, 140 S.Ct. 2316, 2324 (2020); McPherson v. Blacker, 146 U.S. 1, 25 (1892). 31 ¶53 But voters no longer choose between slates of electors on Election Day. Chiafalo, 140 S.Ct. at 2321. Instead, they vote for presidential candidates who serve as proxies for their pledged electors. Id. Accordingly, states exercise their plenary appointment power not only to regulate the electors themselves, but also to regulate candidate access to presidential ballots. Absent a separate constitutional constraint, then, states may exercise their plenary appointment power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President. And nothing in the U.S. Constitution expressly precludes states from limiting access to the presidential ballot to such candidates. See Lindsay v. Bowen, 750 F.3d 1061, 1065 (9th Cir. 2014). ¶54 No party in this case has challenged the Secretary’s authority to require a presidential primary candidate to confirm on the required statement-of-intent form that he or she meets the Article II requirements of age, residency, and citizenship, and to further attest that he or she “meet[s] all qualifications for the office prescribed by law.” Moreover, several courts have expressly upheld states’ ability to exclude constitutionally ineligible candidates from their presidential ballots. See id. (upholding California’s refusal to place a twenty-seven-year-old candidate on the presidential ballot); Hassan v. Colorado, 495 Fed.Appx. 947, 948-49 (10th Cir. 2012) (affirming the Secretary’s decision to exclude a naturalized citizen from the presidential ballot); Socialist Workers Party of Ill. v. Ogilvie, 357 F.Supp. 109, 113 (N.D. Ill. 1972)
(affirming Illinois’s exclusion of a thirty-one-year-old candidate from the presidential ballot). ¶55 As then-Judge Gorsuch recognized in Hassan, it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” 495 Fed.Appx. at 948.
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5.
Section Three applies to President Trump only if (1) the Presidency is an “office, civil or military, under the United States”; (2) the President is an “officer of the United States”; and (3) the presidential oath set forth in Article II constitutes an oath “to support the Constitution of the United States
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.6.
Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.
…
The required force or threat of force need not involve bloodshed, nor must the dimensions of the effort be so substantial as to ensure probable success. In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894). Moreover, although those involved must act in a concerted way, they need not be highly organized at the insurrection’s inception. See Home Ins. Co. of N.Y. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954) (“[A]t its inception an insurrection may be a pretty loosely organized affair…. It may start as a sudden surprise attack upon the civil authorities of a community with incidental destruction of property by fire or pillage, even before the military forces of the constituted government have been alerted and mobilized into action to suppress the insurrection.”).
…
The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection. ¶186 It is undisputed that a large group of people forcibly entered the Capitol and that this action was so formidable that the law enforcement officers onsite could not control it. Moreover, contrary to President Trump’s assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found-and millions of people saw on live television, recordings of which were introduced into evidence in this casethat the mob was armed with a wide array of weapons. See Anderson, ¶ 155. The court also found that many in the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers’ batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol. Id. at ¶¶ 156-57. The fact that actual and threatened force was used that day cannot reasonably be denied. ¶187 Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose …. They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” Id. at ¶ 243. And upon breaching the Capitol, the mob immediately pursued its intended target-the certification of the presidential election-and reached the House and Senate chambers within minutes of entering the building. Id. at ¶ 153. ¶188 Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. Id. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire-which included threats of physical violence-was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. Id. at ¶¶ 163, 179-80; see U.S. Const. art. I, § 3, cl. 4; id. at art. II, § 1, cl. 3. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties. Anderson, ¶¶ 148, 170, 172-73. ¶189 In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection, and thus we will proceed to consider whether President Trump “engaged in” this insurrection.
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[A]n individual need not directly participate in the overt act of levying war or insurrection for the law to hold him accountable as if he had: [I]t is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories. In re Charge to Grand Jury-Treason, 30 F. Cas. 1047, 1048 (C.C.E.D. Pa. 1851).
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.7.
Substantial evidence in the record showed that even before the November 2020 general election, President Trump was laying the groundwork for a claim that the election was rigged. For example, at an August 17, 2020 campaign rally, he said that “the only way we’re going to lose this election is if the election is rigged.” Anderson, ¶ 88. Moreover, when asked at a September 23, 2020 press briefing whether he would commit to a peaceful transfer of power after the election, President Trump refused to do so. Id. at ¶ 90. ¶198 President Trump then lost the election, and despite the facts that his advisors repeatedly advised him that there was no evidence of widespread voter fraud and that no evidence showed that he himself believed the election was wrought with fraud, President Trump ramped up his claims that the election was stolen from him and undertook efforts to prevent the certification of the election results. For example, in a December 13, 2020 tweet, he stated, “Swing States that have found massive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes as complete &correct without committing a severely punishable crime.” Id. at ¶ 101. And President Trump sought to overturn the election results by directly exerting pressure on Republican officeholders in various states. Id. at ¶ 103. ¶199 On this point, and relevant to President Trump’s intent in this case, many of the state officials targeted by President Trump’s efforts were subjected to a barrage of harassment and violent threats by his supporters. Id. at ¶ 104. President Trump was well aware of these threats, particularly after Georgia election official Gabriel Sterling issued a public warning to President Trump to “stop inspiring people to commit potential acts of violence” or “[s]omeone’s going to get killed.” Id. President Trump responded by retweeting a video of Sterling’s press conference with a message repeating the very rhetoric that Sterling warned would result in violence. Id. at ¶ 105. ¶200 And President Trump continued to fan the flames of his supporters’ ire, which he had ignited, with ongoing false assertions of election fraud, propelling the “Stop the Steal” movement and cross-country rallies leading up to January 6. Id. at ¶ 106. Specifically, between Election Day 2020 and January 6, Stop the Steal organizers held dozens of rallies around the country, proliferating President Trump’s election disinformation and recruiting attendees, including members of violent extremist groups like the Proud Boys, the Oath Keepers, and the Three Percenters, QAnon conspiracy theorists, and white nationalists, to travel to Washington, D.C. on January 6. Id. at ¶ 107. ¶201 Stop the Steal leaders also joined two “Million MAGA Marches” in Washington, D.C. on November 14, 2020, and December 12, 2020. Id. at ¶ 108. Again, as relevant to President Trump’s intent here, after the November rally turned violent, President Trump acknowledged the violence but justified it as selfdefense against “ANTIFA SCUM.” Id. at ¶ 109. ¶202 With full knowledge of these sometimes-violent events, President Trump sent the following tweet on December 19, 2020, urging his supporters to travel to Washington, D.C. on January 6: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6. Be there, will be wild!” Id. at ¶ 112. ¶203 At this point, the record established that President Trump’s “plan” was that when Congress met to certify the election results on January 6, Vice President Pence could reject the true electors who voted for President Biden and certify a slate of fake electors supporting President Trump or he could return the slates to the states for further proceedings. Id. at ¶ 113. ¶204 Far right extremists and militias such as the Proud Boys, the Oath Keepers, and the Three Percenters viewed President Trump’s December 19, 2020 tweet as a “call to arms,” and they began to plot activities to disrupt the January 6 joint session of Congress. Id. at ¶ 117. In the meantime, President Trump repeated his invitation to come to Washington, D.C. on January 6 at least twelve times. Id. at ¶ 118. ¶205 On December 26, 2020, President Trump tweeted: If a Democrat Presidential Candidate had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the Democrat Senators would consider it an act of war, and fight to the death. Mitch [McConnell] &the Republicans do NOTHING, just want to let it pass. NO FIGHT! Id. at ¶ 121. ¶206 And on January 1, 2021, President Trump retweeted a post from Kylie Jane Kremer, an organizer of the scheduled January 6 March for Trump, that stated, “The calvary [sic] is coming, Mr. President! JANUARY 6 |Washington, D.C.” President Trump added to his retweet, “A great honor!” Id. at ¶ 119. ¶207 The foregoing evidence established that President Trump’s messages were a call to his supporters to fight and that his supporters responded to that call. Further supporting such a conclusion was the fact that multiple federal agencies, including the Secret Service, identified significant threats of violence in the days leading up to January 6. Id. at ¶ 123. These threats were made openly online, and they were widely reported in the press. Id. Agency threat assessments thus stated that domestic violent extremists planned for violence on January 6, with weapons including firearms and enough ammunition to “win a small war.” Id. ¶208 Along the same lines, the Federal Bureau of Investigation received many tips regarding the potential for violence on January 6. Id. at ¶ 124. One tip said: They think they will have a large enough group to march into DC armed and will outnumber the police so they can’t be stopped …. They believe that since the election was “stolen” it’s their constitutional right to overtake the government and during this coup no U.S. laws apply. Their plan is to literally kill. Please, please take this tip seriously and investigate further. Id. ¶209 The record reflects that President Trump had reason to know of the potential for violence on January 6. As President, he oversaw the agencies reporting the foregoing threats. Id. at ¶ 123. In addition, Katrina Pierson, a senior advisor to both of President Trump’s presidential campaigns, testified, on behalf of President Trump, that at a January 5, 2021 meeting, President Trump chose the speakers for the January 6 event at which he, too, would speak (avoiding at least some extremist speakers) and that he knew that radical political extremists were going to be in Washington, D.C. on January 6 and would likely attend his speech. Id. at ¶¶ 48, 126. ¶210 January 6 arrived, and in the early morning, President Trump tweeted, “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect &even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!” Id. at ¶ 127. He followed this tweet later that morning with another that said, “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!” Id. ¶211 These tweets had the obvious effect of putting a significant target on Vice President Pence’s back, focusing President Trump’s supporters on the Vice President’s role in overseeing the counting of the electoral votes and certifying the 2020 presidential election to ensure the peaceful transfer of power. Id. at ¶¶ 128, 291. ¶212 At about this same time, tens of thousands of President Trump’s supporters began gathering around the Ellipse for his speech. Id. at ¶ 129. To enter the Ellipse itself, attendees were required to pass through magnetometers. Id. at ¶ 130. Notably, from the approximately 28,000 attendees who passed through these security checkpoints, the Secret Service confiscated hundreds of weapons and other prohibited items, including knives or blades, pepper spray, brass knuckles, tasers, body armor, gas masks, and batons or blunt instruments. Id. at ¶¶ 130-31. Approximately 25,000 additional attendees remained outside the Secret Service perimeter, thus avoiding the magnetometers. Id. at ¶ 132. ¶213 President Trump then gave a speech in which he literally exhorted his supporters to fight at the Capitol. Among other things, he told the crowd: • “We’re gathered together in the heart of our nation’s capital for one very, very basic reason: to save our democracy.” Id. at ¶ 135. • “Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we’re going to have to fight much harder.” Id. • “Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you ….” Id. • “[W]e’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.” Id. • “When you catch somebody in a fraud, you’re allowed to go by very different rules.” Id. • “This the most corrupt election in the history, maybe of the world…. This is not just a matter of domestic politics-this is a matter of national security.” Id. • “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” Id. ¶214 Unsurprisingly, the crowd at the Ellipse reacted to President Trump’s words with calls for violence. Indeed, after President Trump instructed his supporters to march to the Capitol, members of the crowd shouted, “[S]torm the capitol!”; “[I]nvade the Capitol Building!”; and “[T]ake the Capitol!” Id. at ¶ 141. And before he had even concluded his speech, President Trump’s supporters followed his instructions. Id. at ¶ 146. The crowd marched to the Capitol, many carrying Revolutionary War flags and Confederate battle flags; quickly breached the building; and immediately advanced to the House and Senate chambers to carry out their mission of blocking the certification of the 2020 presidential election. Id. at ¶¶ 146-53. ¶215 By 1:21 p.m., President Trump was informed that the Capitol was under attack. Id. at ¶ 169. Rather than taking action to end the siege, however, approximately one hour later, at 2:24 p.m., he tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” Id. at ¶ 170. ¶216 This tweet was read over a bullhorn to the crowd at the Capitol, and produced further violence, necessitating the evacuation of Vice President Pence from his Senate office to a more secure location to ensure his physical safety. Id. at ¶¶ 171-75. ¶217 President Trump’s next public communications were two tweets sent at 2:38 p.m. and 3:13 p.m., encouraging the mob to “remain peaceful” and to “[s]tay peaceful” (obviously, the mob was not at all peaceful), but neither tweet condemned the violence nor asked the mob to disperse. Id. at ¶ 178 (alteration in original). ¶218 Throughout these several hours, President Trump ignored pleas to intervene and instead called on Senators, urging them to help delay the electoral count, which is what the mob, upon President Trump’s exhortations, was also trying to achieve. Id. at ¶ 180. And President 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. Id. President Trump also rejected pleas from House Republican Leader Kevin McCarthy, imploring him to tell his supporters to leave the Capitol, stating, “Well, Kevin, I guess these people are more upset about the election than you are.” Id. ¶219 Finally, at 4:17 p.m., President Trump released a video urging the mob “to go home now.” Id. at ¶ 186. Even then, he did not condemn the mob’s actions. Id. at ¶ 187. Instead, he sympathized with those who had violently overtaken the Capitol, telling them that he knew their pain. Id. at ¶¶ 186-87. He told them that he loved them and that they were “very special.” Id. at ¶ 186. And he repeated his false claim that the election had been stolen notwithstanding his “landslide” victory, thereby further endorsing the mob’s effort to try to stop the peaceful transfer of power. Id. at ¶¶ 186-87. ¶220 A short while later, President Trump reiterated this supportive message to the mob by justifying its actions, tweeting at 6:01 p.m., “These are the things and events that happen when a sacred landslide election victory is so unceremoniously &viciously stripped away from great patriots who have been badly &unfairly treated for so long. Go home with love &in peace.” Id. at ¶ 189. President Trump concluded by encouraging the country to “[r]emember this day forever!” Id. ¶221 We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection. President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.
We disagree with President Trump’s contentions that the record does not support a finding that he engaged in an insurrection because (1) “engage” does not include “incite,” and (2) he did not have the requisite intent to aid or further the insurrectionists’ common unlawful purpose. ¶223 As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection. ¶224 Moreover, the record amply demonstrates that President 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. ¶225 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.
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Even so, “the right of free speech is not absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). The First Amendment does not protect, for example, true threats, Watts v. United States, 394 U.S. 705, 708 (1969); speech essential to criminal conduct, Packingham v. North Carolina, 582 U.S. 98, 107 (2017); or speech that incites lawless action, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). It is this last strand of First Amendment jurisprudence that the parties debate here.
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AUTHOR’s FURTHER POINTS TO CONSIDER
(not found in the Court’s Opinion)
There are a few technical points that may give the U.S. Supreme Court enough leeway to reverse the Colorado Supreme Court’s decision in this case. However, a few points should be mentioned:
Regarding the critically important issue of whether Section 3 of the 14th Amendment requires a prior criminal conviction of insurrection before a person becomes disqualified from office: (i) Section 3 itself, does not contain any express language requiring that their be a prior criminal conviction before the person in question (Trump) can be disqualified from holding office; (ii) There was a five day trial in the Colorado case which would have been conducted in a manner consistent with applicable rules of evidence. Thus, contrary to Trump’s assertions, he was, in fact, afforded Due Process of Law to litigate and contest the issue of whether he committed insurrection. And in doing so, he lost. Thus, the issue has been litigated and unless reversed on appeal by the U.S. Supreme Court, the affect of that judgment should be “res judicata” as between the parties to the suit in Colorado (if not elsewhere as well). In short, the Colorado Supreme Court in essence allowed the issue of whether Trump was guilty of insurrection to be litigated within the case that seeks to remove him from the ballot (and not require that there be a prior criminal conviction of Trump before disqualifying him from both the ballot and from holding office; (iii) allowing the question of whether a person is guilty of insurrection to be decided contemporaneously with the petition to disqualify them eliminates that possibility that a person guilty of insurrectionist acts somehow gets elected (before a criminal case can be brought against them and/or tried) and then pardons himself or herself before any result is reached in the criminal case against them. Such a result would allow unscrupulous power hungry politicians to manipulate election rules to seize power and then, either manipulate subsequent court proceedingsj (through manipulation of the the Department of Justice) and/or if later convicted of insurrection, pardon themselves. This would subvert the whole principle of the primacy of the rule of law and completely defeat the purpose of Section 3 of the Fourteenth Amendment itself.
(iii) Most lawyers, recognize the name of retired federal judge J. Michael Luttig, who sat on the U.S. Fourth Circuit Court of Appeals for many years. (U.S. Courts of Appeal decisions are supreme within their respective circuits and are only reviewable to the U.S. Supreme Court) He is widely known as a legal scholar whose opinions tended to be regarded as conservative leaning. He served in the Reagan White House, held several positions in various Republican administrations and was ultitmately nominated to served on the U.S. Court of Appeals by former President George H.W. Bush. Despite this he has always, enjoyed a huge amount of respect from all members of the bar regardless of political affiliation. In short, he was/is known as a judge of great integrity with a very keen legal mind. Regarding the Colorado case, Judge Luttig believes that Colorado Supreme Court acted properly in holding Trump disqualified from future office for the same reasons cited by the Colorado Supreme Court. Implicit in Luttig’s analysis of the case is that there is no need for a prior criminal conviction in order for state officials to hold that Trump engaged in insurrection and is thus ineligible to hold future public office. [ See various articles in USA Today, The Hill, Politico and videos on CNN and MSNBC concerning Judge Luttig’s observations about the Colorado case and Trump’s eligibility for office.] The bottom line is that one of the most respected conservative Republican judges in the country says that the Colorado court’s decision was correct and that Trump should be disqualified from office. Judge Luttig has also expressed great worry about the continuation of our democracy if Trump gets re-elected.3
(iv) Most lawyers, especially criminal defense attorneys, are well aware of the legal dictum, that persons accused of crimes are deemed, to intend the natural and probable consequences of their acts. This means that a defendant cannot, in most instances, claim that he really didn’t intend for something bad to happen (after it did) in order to get out of being convicted of a crime. In short, courts will usually hold defendants responsible and convict them even if they say it was an accident, if what the defendant did created a dangerous or unlawful situation to arise or transpire especially if that unlawful or dangerous consequence was or would have been foreseeable to most people. Ever since he first announced his candidacy for the Presidency in 2015, Trump has made it a regular practice of putting bad ideas in other peoples heads, and when they act on what he hints at or suggests, he washes his hands and says “they did it, not me”. In other words, on January 6, 2021, Trump said and did many things that any rational person would know would fire up the crowd, cause a riot, put everyone in a dangerous position and interfere with the Congressional proceedings to certify the 2020 election results in Joe Biden’s favor. In short, Trump’s “I didn’t do it…the protestors did” excuse did not fly with the Colorado Supreme Court.
(v) The complete text of the Colorado case is fairly long. A summary, consisting of verbatim quotes of relevant passages appears below. This includes some extensive quotes pertaining to the events of the January 6, 2021 Capitol riot and Trump’’s involvement therewith. That is following by some highly relevant end notes.
(vi) So Judge Luttig joins a long list of distinguished Republicans, long recognized conservatives who have either spoken out against, or outright opposed any future Trump candidacy and in fact many have loudly warned of the dangers that a second Trump Presidency poses to the continued existence of our democracy. Remember these are all highly respected Republicans.
Mitt Romney (former Republican Presidential Candidate [2016] U.S. Senator Utah)
John Kelly (former White House Chief of Staff under President Trump)
Dick Cheney (former Vice President under Republican President George W. Bush)
John Bolton (former National Security Advisor to Trump)
James Mattis (former Secretary of Defense under Trump)
Rex Tillerson (former Secretary of the Treasury under Trump)
Liz Cheney (former Congresswoman)
Adam Kinzinger (former Congressman)
This is just a partial list.
Has there ever been a time in American history when so many members of a public official’s former inner circle have loudly denounced them and warned of the dangers of their being re-elected? For a more extensive list of Trump officials who have expressed alarm at the thought of a second Trump Presidency see the following Forbes article:
Moreover, consider the legal trouble that Trump’s lawyers have gotten into while attempting to represent him. Many, if not most, of them have been sanctioned (penalized) by the courts for filing frivolous bad faith motions etc in legal cases brought challenging the 2020 election.
Rudy Giulianni ($148 million dollar judgment against him and other trouble. Filed for Bankruptcy)
Sidney Powell
John Eastman
Again the above represents but a small list of attorneys who’ve gotten in legal trouble representing Trump. And then, of course, there is Michael Cohen, his former fixer lawyer who served time in connection with the Stormy Daniels controversy. For a more extensive discussion of the long list of attorneys who’ve gotten in trouble representing Trump see https://www.vanityfair.com/news/2023/06/donald-trump-lawyer-guide
And the foregoing, doesn’t even consider the many other legal problems that Trump has had.
Would you allow your teenage daughter to go out on a date with a twenty year old guy who has been charged, but not convicted of rape, especially if you’ve seen guy in question physically push or shove other females around?
Would it not be extremely unwise, if not absolutely reckless and foolish to re-elect a man to the nation’s highest and most powerful office when one of the nation’s highest courts has already determined that he sought, by force, to prevent the swearing in of his lawfully elected successor? Is it wise to ever trust such a man with the reins of power of the mightiest nation on earth again? If he ever did get power would he ever let it go? Can we, should we, trust him even if he says he would?
There is an unimaginably huge difference between, on the one hand, granting everyone the right due process before convicting them of a crime and putting them in jail, and, on the other, saying that a prospective candidate for the nation’s highest office must be convicted of a crime before he is deemed ineligible to hold that office. People who would require a conviction before disqualifying a prospective candidate are setting this nation up to take unnecessary and dangerous risks to the continuance of democracy in America—especially when, as in Trump’s case, his personal legal record pertaining to innumerable other legal matters is so overwhelming and alarming. It’s breathtakingly dangerous and stupid.
David Dixon Lentz December 27, 2023
Supplemented 12/28/23
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