The judge in Colorado hearing whether Trump can be on the ballot there issued a 102 page ruling yesterday that Trump can be on the ballot. You can read the decision HERE:
Along the way the judge ruled against Trump at every turn, except the last turn, where the judge strained to declare that the presidency is not an office of the United States. Among the things the judge decided:
- Were the events of January 6th an insurrection? Yes. In fact the judge said it easily met the definition for insurrection.
- Did Trump incite the insurrection? Yes.
- Did Trump engage in the insurrection?
- Did Trump engage in the insurrection with the intent of disturbing the counting of electoral votes? Yes.
- Were Trump’s words inciting and engaging in the insurrection protected by the First Amendment? No.
So you might be wondering how the judge can allow an insurrectionist on the ballot. Let’s go to the words of Section 3 of the 14th Amendment.
“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.”
So this leads to an additional question.
- Does the catch all phrase “as an officer of the United States” include the President of the United States? According to this judge, no.
Trump’s Presidential oath does not count was an oath to be an officer of the United States. If you want to see the tortured reasoning for this you can just read the last seven pages. The judge saved this for that. Just start on p. 95 of the 102 pages.
Consider this head spinning statement that is paragraph 304 on p. 97:
“The Court holds that it is unpersuaded that the drafters intended to include the highest office in the Country in the catchall phrase ‘office . . . under the United States.’” The judge acknowledges this is a close call stating, “there are persuasive arguments on both sides.”
The judge acknowledges a bias against ruling to keep Trump off the ballot admitting a “reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three.” So his standard of legal analysis gave a benefit of presumption in favor of keeping Trump on the ballot.
One theory argues the judge is setting herself up to be overruled on appeal. She ruled against Trump on all the fact questions, but ruled in favor of Trump on a close call legal question.
Supporting this theory is the fact that the judge waited until the end to make this legal determination. The judge just could have put that up front, declared Section 3 does not apply to the President, and therefore all the other questions about whether it was an insurrection or Trump engaged in it are moot. Arguably, the judge should have done that as courts are normally loathe to resolve questions they don’t have to. Certainly would have saved a lot of writing.
My personal belief is that this decision probably sticks. Any appellate court will have a similar reticence to unilaterally impact the election in this manner.