DENVER (AP) — A Colorado judge found Friday that former President Donald Trump committed insurrection during the attack on the U.S. Capitol on Jan. 6, 2021, but rejected an attempt to remove him from the state’s primary to stay away because it is unclear whether a civilian is in power. The presidency is subject to a wartime constitutional amendment that prohibits insurgents from holding public office.
The lawsuit, filed by a left-leaning group on behalf of a group of Republican and independent voters in Colorado, alleged that Trump’s actions related to the attack violated a clause in the 14th Amendment that prohibits anyone from holding office , who “took part in a riot.” or rebellion” against the Constitution.
District Judge Sarah B. Wallace’s decision is the third ruling in just over a week against lawsuits seeking to bar Trump from the ballot by citing Section 3 of the Constitutional Amendment. The Minnesota Supreme Court said last week that Trump could remain in the primary because political parties had sole discretion over who appeared, while a Michigan judge ruled that Congress was the proper forum to decide whether Section 3 applies to Trump.
In her decision, Wallace said she had concluded that Trump did indeed “participate in the insurrection” on Jan. 6 and rejected his lawyers’ arguments that he was merely exercising free speech. Normally that would be enough to disqualify him under Section 3, but she said she couldn’t do that with a presidential candidate.
Section 3 does not specifically refer to the presidency, but to members of the U.S. Senate or House of Representatives. Instead, the clause refers to “electors of the President and Vice President,” as well as civilian and military offices.
“Part of the Court’s decision rests on its refusal to adopt an interpretation that would disqualify a presidential candidate without a clear, unambiguous indication that that is the intent of Section Three,” the judge wrote in the 102- side judgment.
Trump campaign spokesman Steven Cheung called the ruling “another nail in the coffin of un-American voting challenges.”
“These cases represent the most cynical and blatant political attempts by desperate Democrats to interfere in the upcoming presidential election,” Cheung said in a statement.
Citizens for Responsibility and Ethics in Washington, the group that filed the case, said it would appeal to the Colorado Supreme Court.
“The court concluded, after a careful and thorough review of the evidence, that Donald Trump committed insurrection,” said attorney Mario Nicolais, who represented the voters who filed the lawsuit. “We are very pleased with the opinion and look forward to resolving on appeal the sole legal question, namely whether Section 3 of the 14th Amendment applies to insurgent presidents.”
Whether the case is in Colorado or a case filed in another state, the issue will likely ultimately reach the U.S. Supreme Court, which has never ruled on Section 3. The Free Speech for People group, which sued in the Michigan case, appealed to a state court on Thursday.
Legal experts said it was significant that Wallace found Trump participated in an insurrection. She wrote that she agreed with the petitioners’ claim that he “incited” the attack.
“It is an astonishing decision for a court to conclude that a former president committed insurrection against the United States,” said Derek Muller, a Notre Dame law professor who has followed the case closely. “And there’s a good chance that a court will disqualify him from running on appeal.”
Trump called Democratic groups trying to clean up “election interference” funded by “dark money.” His lawyers argued in court that Trump was simply exercising his First Amendment rights on Jan. 6, that he did not incite an insurrection and that Section 3 should never apply to presidential candidates.
They also argued that no single justice should terminate a candidacy based on the interpretation of a clause that has only been used a handful of times in 150 years.
“Plaintiffs are asking this court to do something that has never been done in the history of the United States,” Trump lawyer Scott Gessler said during closing arguments. “The evidence is not nearly sufficient to allow the court to do this.”
The petitioners argued that there was little ambiguity in Section 3 because, before January 6, it was used primarily to prevent former Confederates from taking control of the government after the Civil War. It bars those who have sworn an oath to uphold the Constitution and then “participated in insurrection or rebellion against it” from holding state or federal office unless amnesty is granted by a two-thirds majority of Congress.
During a weeklong hearing earlier this month, they called a law professor who testified that the clause was widely understood to prevent former Confederates from becoming president. He also showed documents from the post-Civil War period showing that even an act like buying Confederate war bonds could make someone ineligible for office.
The lawyers seeking to disqualify Trump from the election claimed he was simply disqualified, as clearly as if he had not reached the age limit of 35 for the office. That this has never happened before is a reflection of Trump and his actions, they said.
Legal historians say Section 3 fell into disuse after Congress granted amnesty from its provisions to most former Confederates in 1872. It was revived after the attack on the Capitol that sought to prevent Congress from certifying Democrat Joe Biden’s victory.
The case relied on 150-year-old records from the debate over the 14th Amendment. Wallace said there was “little direct evidence” that the measure should apply to the presidency. She noted that Trump lawyers had pointed to a law professor’s finding that an early draft specified the presidency and vice presidency but not the final version. The provision also refers to “officers of the United States,” a term that does not include the two highest offices elsewhere in the Constitution.
However, the petitioners’ legal historian testified that in the years following the Civil War, it was widely believed that Section 3 would prevent Jefferson Davis, the former president of the Confederacy, from being elected president of the United States. He also discovered recordings from the debate in which a senator asked whether the measure applied to the presidency and a writer recited “officers of the United States” language. The senator who asked the question then became convinced that the president was actually there, the statement said.
“The record reveals considerable tension between competing interpretations and a lack of definitive guidance in the text or historical sources,” Wallace wrote.
The recent cases against Trump mark renewed interest in the long-ignored provision, which only gained attention after Jan. 6.
The group Free Speech For People, which filed the challenges in Minnesota and Michigan, also sought to bar Republican Reps. Madison Cawthorn and Marjorie Taylor Greene from voting in 2022, citing Section 3. Cawthorn’s case became moot when he lost his primary, and a judge ruled against the lawsuit that sought to oust Greene.
CREW successfully used Section 3 to fire a rural New Mexico County commissioner who entered the Capitol on Jan. 6 and was later convicted of a misdemeanor.