The Colorado Supreme Court Throws Trump A Curve Ball

Heather Cox Richardson

This evening, by a vote of 4–3, the Colorado Supreme Court decided that former president Donald Trump is disqualified from holding office and should be removed from the 2024 ballot in the state, citing Section 3 of the 14th Amendment to the U.S. Constitution. 

That section was written in the wake of the Civil War, after former Confederates had reelected to Congress men who had left in 1861 to try to destroy the United States government after voters elected Abraham Lincoln. 

The section reads: “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.”  

Six Colorado Republican and Independent voters challenged Trump’s inclusion on the state’s ballots because of his role in the January 6, 2021, attempt to stop the counting of the nation’s lawful electoral ballots that had elected Democrat Joe Biden president in 2020. Last month, Denver District Court Judge Sarah Wallace ruled that Trump had engaged in insurrection by inciting the riot that led to an attack on the U.S. Capitol but said that Section 3 did not apply to the president. 

Today the Colorado Supreme Court agreed that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection” and that Trump “engaged in” that insurrection through his personal actions, including his incitement of the crowd that breached the Capitol. But it disagreed that the 14th Amendment did not apply to the president. 

“The sum of these parts is this,” the court wrote. “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.”

“We do not reach these conclusions lightly,” the court said. “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.” Colorado voters preferred Democratic candidates to Trump in 2016 and 2020, so this case is less likely to reflect on Colorado in 2024 than it is to open the door to other challenges in swing states.

Recognizing that Trump would undoubtedly appeal to the U.S. Supreme Court—as his lawyers say he will—the court stayed its ruling until January 4, the day before the deadline for the Colorado secretary of state to certify the presidential primary ballot. Los Angeles Times legal analyst Harry Litman warns that “we are in for a wild and woolly constitutional ride over the next 16 days and perhaps beyond.” 

It is not just this case, but also the question of whether Trump has presidential immunity for his behavior in office that will likely come before the U.S. Supreme Court in the next few weeks. In August a grand jury indicted Trump on four counts for engaging in a conspiracy to defraud the United States when he tried to overturn the results of the 2020 presidential election.

Trump’s lawyers have argued that “he enjoys absolute immunity from criminal prosecution” for his behavior in office, and that in any case, he cannot now be tried for a crime after being impeached by the House of Representatives for high crimes and misdemeanors for the events of January 6 and then acquitted by the Senate. 

(At the time, Republican leader Mitch McConnell (R-KY) said that although he was voting to acquit, the proper place for Trump to face accountability was in the legal system. “President Trump is still liable for everything he did while he was in office as an ordinary citizen,” McConnell said. “He didn’t get away with anything. Yet.”)  

As Special Counsel Jack Smith put it: “This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

When a district court denied Trump’s immunity claim, Trump appealed, pretty clearly hoping to delay the case from its scheduled March 4 date until after the 2024 election by working it slowly through the courts until it got to the Supreme Court. Special Counsel Smith tried to avoid this delay by going straight to the Supreme Court to ask it to rule speedily on Trump’s argument that all of his behavior, including that which a grand jury said was criminal, was permitted while Trump was president. The court has not agreed to take the case, but it has agreed to consider taking it and has asked Trump’s lawyers to respond with their arguments by tomorrow. 

Trump is trying very hard to appear the inevitable Republican nominee, but these cases pose real problems for him. Polls from last August show that Republicans are reluctant to vote for a convicted felon. Even if he is not convicted, the constant stories about his participation in the events of January 6 will not help him; the hearings of the January 6th committee weakened his support. 

Trump’s determination to appear dominant despite his mounting troubles is helping to crumble the remnants of the Republican Party. Nicole Lafond of Talking Points Memo points out that this summer, Trump demanded that Iowa governor Kim Reynolds endorse him, although the governor of Iowa traditionally stays neutral before the nation’s first caucus unless there is a party incumbent. He was angry enough to pick a fight with her, and she ultimately did break precedent, backing Florida governor Ron DeSantis.

Now Trump is both attacking her and using old clips of her endorsing him in advertisements, prompting her to demonstrate Republican infighting by urging people to move on to a different candidate. “We need somebody that can win,” she said. 

The Republicans in Congress aren’t helping the party’s image. Although the extremists in the House demanded more than 700 votes this year on things like reducing salaries of officials they dislike to $1, Annie Karni of the New York Times noted today that Congress passed just 27 bills in 2023, making it a historically unproductive Congress. In 2021, when Democrats held the House by the same slim majority the Republicans have now, Congress passed 85 bills that the president signed into law. In two years, the 80th Congress of 1947–1949, famously dubbed the “Do Nothing Congress,” passed 906. 

And former House speaker Kevin McCarthy (R-CA), the first speaker ever thrown out by his own party, today officially resigned his seat.

Meanwhile, the Senate today confirmed by voice vote the 11 four-star generals that Senator Tommy Tuberville (R-AL) held up for most of the year. Tuberville is still placing a hold on the Pentagon’s civilian nominees.

And still, more news about January 6 continues to drop. The Inspector General for the Department of the Interior released a new report showing that one of the groups organizing the rally at the Ellipse that day, Women for America First, lied to federal officials in the National Park Service, denying that there were plans for a second rally in front of the Supreme Court. Such a rally would take the protesters right past the U.S. Capitol, and National Park Service officials asked repeatedly about such a plan because on two other occasions, Women for America First had led marches to the Supreme Court that had led to street violence and dozens of arrests.

Today’s revelation showed text messages between Women for America First official Kylie Kramer and MyPillow chief executive officer Mike Lindell in which Kramer told Lindell: “[W]e are having a second stage at the Supreme Court again after the ellipse. POTUS is going to have us march there/the Capitol.  It cannot get out about the second stage because people will try and set another up and Sabotage it. It can also not get out about the march because I will be in trouble with the national park service and all the agencies but POTUS is going to just call for it ‘unexpectedly’… Only myself and [White House liaison] know full story of what is actually happening….” 

Finally, today, a federal judge ruled that Representative Scott Perry (R-PA) must allow federal prosecutors access to his phone records, including more than 1,600 messages he exchanged with members of the Trump administration, Congress, and outside allies in their effort to overturn the results of the 2020 election.

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