A Colorado court makes it official: Trump is an insurrectionist
By Austin Sarat and Dennis Aftergut, opinion contributors,7 days ago
Sometimes it is possible to snatch victory from the jaws of defeat in the world of law and politics. Friday’s Colorado court decision refusing to apply the 14th Amendment to disqualify former President Donald Trump from appearing on the Republican presidential primary ballot in Colorado is just such a moment.
For people who believe that Trump should be disqualified , the judge’s holding is a disappointing defeat. But there is a powerful silver lining in this cloud for those who understand that facts and truth are essential to the survival of democracy, freedom and the rule of law.
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For the first time, a judge, having heard evidence and conducted a hearing under section 3 of the 14 th Amendment, has stated unequivocally that Donald Trump committed an “insurrection against the Constitution.” Section 3 provides :
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office . . . under the United States . . .who, having previously taken an oath, . . . as an officer of the United States . . . to support the Constitution . . . shall have engaged in insurrection or rebellion against the same . . . .”
As Judge Sarah Wallace puts it in her 102-page decision: “The court finds that . . .Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.”
Thus, the Colorado court has both affirmed the commitment to truth that animates the justice system under the rule of law and set another marker of Trump’s deviation from constitutional governance. The court’s decision makes a record for history.
The plaintiffs in the case built on the work of scholars and commentators who concluded that Trump was a federal “officer” during his term as president and that his involvement in the run-up to Jan. 6, 2021, and the events of that day were acts of insurrection.
Unfortunately, after determining the correctness of the last premise, Judge Wallace veered off the course of sensible constitutional interpretation. She held that a president is not a federal “officer” and that the framers of Section 3 intended to allow an insurrectionist president to hold future office.
She also held that because the presidential oath is to “preserve, protect and defend” the Constitution, Trump never vowed to “support” it, as Section 3 requires.
As Chief Justice John Marshall proclaimed in 1819 in the seminal case of McCulloch v. Maryland, courts “must never forget that it is a Constitution we are expounding.” Judges, he thought, should avoid belittling our foundational document by parsing language in ways that defy its overriding purpose of preserving our constitutional republic. That is precisely what Judge Wallace’s legal conclusions seem to have done.
But, by giving Trump a win on the disqualification question, Wallace has made it hard for the 2024 hopeful and his cronies to dismiss her decision as partisan, or animated by hatred of the former president, as they have done when other judges ruled against Trump. In fact, on Saturday he called the Colorado ruling “a gigantic court victory.” Perhaps he had not read or digested what it said about his role in the Jan. 6 insurrection.
Wallace’s conclusion about disqualification comes on the heels of decisions by other state courts that, on other grounds, have also rejected the application of Section 3 to Trump. On Nov. 8, the Minnesota Supreme Court decided that the secretary of State lacked authority to bar Trump from the primary ballot. But it did not reach the questions of whether Trump had engaged in insurrection or whether he was ineligible to hold office under the 14 th Amendment if he were elected president.
On Nov. 14, a Michigan trial court reached a similar conclusion about Trump’s eligibility to appear on that state’s Republican primary ballot. Again, however, the court did not reach the question of Trump’s responsibility for the Jan. 6 insurrection or whether he could be disqualified from holding office under the 14 th Amendment.
The judge in that case decided that it “should be up to Congress to decide whether Trump is disqualified under the section of the U.S. Constitution that bars from office a person who ‘engaged in insurrection’… and whether or not someone participated in it rather than ‘one single judicial officer.’”
Judge Wallace felt no such need to defer to the Congress on the question of whether Trump had engaged in insurrection. She proceeded to hear testimony from academic experts who discussed the meaning of insurrection and Trump’s responsibility for the Capitol attack. Judge Wallace also heard from people who were there on Jan. 6 , including Capitol Police officers and Congressman Eric Swalwell (D-Calif.).
In response, Trump’s lawyers argued that the former president was in no way responsible for Jan. 6 and that what he said that day was protected by the First Amendment.
Wallace’s opinion carefully recounts the testimony from both sides. Under American law, her findings of fact are entitled to great deference from appellate courts because she heard the evidence and could assess witness credibility.
The court’s extensive findings include “Trump’s history with political extremists.” The court noted that “violent far right extremists understood that Trump’s calls to “‘fight’… were . . . literal calls to violence by these groups, while Trump’s statements negating that sentiment . . . existed to . . . create plausible deniability.”
Judge Wallace determined that “Trump knew his violent supporters understood his statements this way, and… were intended to incite violence” and “planted the seed” for the storming of the Capitol. Notably, she also found that “Trump knew he had lost the election.”
The judge highlights what Trump did as the Capitol siege unfolded. She notes that his video at 4:17 pm that day served to “endorse the actions of the mob in trying to stop the peaceful transfer of power. It did not condemn the mob but instead . . . praised them.”
In building to her conclusion, Judge Wallace finds that at the time of the 14 th Amendment’s ratification, “insurrection” was understood “to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.” What Trump did and said, Wallace concludes, qualifies under that definition.
The next stop is the Colorado Supreme Court. While it must defer to the trial court’s factual findings, the higher court is completely free to reverse her legal conclusions that Trump was not a federal “officer” and did not take an oath to “support” the Constitution. After the state court makes its determinations, the case is bound for the U.S. Supreme Court.
In the meantime, we should not underestimate the significance of this moment. The Colorado court has put on the record what the former president has long denied , namely that Donald Trump engaged in an insurrection designed to overthrow the American Constitution and keep him in office in defiance of the people’s will.
As historian Timothy Snyder reminds us , “to abandon facts is to abandon freedom.” Because Judge Wallace has stood firmly by the facts, she delivered a decisive rebuke to those in our own country who would “abandon freedom” by ignoring the truth of what Donald Trump did on Jan. 6.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.