The Colorado Supreme Court yesterday decided that Donald Trump “engaged in an insurrection or rebellion” on or about Jan. 6, 2021. Under the 14th Amendment to the Constitution, he is therefore ineligible for the presidency and would be removed from the Colorado ballot.
A few points to consider:
The Court on its own volition stayed its order until Jan. 4 to give Trump an opportunity to appeal the case to the real Supreme Court, the United States one. If he does so, and he will, and the Supreme Court decides to hear the case, and they will, then the order is further stayed until the Supreme Court issues its decision this spring or summer.
The Colorado Supreme Court is comprised of seven justices. All seven were appointed by Democrat governors. The U.S. Supreme Court has a materially different composition. Six of the nine justices are Republican appointees.
Notwithstanding that the Colorado Supreme Court is unanimously Democrat appointees, their decision was 4-3. Three of the seven Democrat-appointed justices sided with Trump. The Colorado decision is contrary to decisions in Minnesota and Michigan, whose supreme courts are also majority Democrat appointees.
It’s fair to say that the Colorado decision is an outlier, even among Democrat jurists.
The 14th Amendment was a post-Civil War amendment primarily for the purpose of establishing equal protection and voting rights for Blacks. It has been interpreted much more broadly than that, however, most recently by the Supreme Court in the Harvard case outlawing discrimination against Asians in college admissions.
The Insurrection Clause of the 14th Amendment was designed to prohibit Confederacy soldiers from holding state or federal offices, including the presidency. The specific words expressing that prohibition are “No person shall . . . hold any office . . . who . . . shall have engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.”
The Insurrection Clause has never before been applied in a court of law.
There are two problematic issues with the Colorado decision, one substantive and one procedural. The substantive one is whether Trump’s actions around Jan. 6 amounted to an insurrection, rebellion or aid or comfort to such.
People tend to side one way or another on this issue depending on their overall political leanings. I personally think the stupid hooligans at the Capitol that day were vandals more than insurrectionists. It’s hard to believe they thought they were truly overthrowing the United States government. As the current President has snarked, you need F16s to do that, not a buffalo robe.
That said, it was not Trump’s finest hour. He did little to dissuade the hooligans from their hooliganism, and he pressured Mike Pence as Vice President to refuse certification of the electoral college votes on the grounds that there had been a massive fraud. It was arguably Trump’s least-finest hour, and that covers some ground. And I say that as someone who voted for him twice.
On the other hand, no less than Rudy Giuliani, a man for whom I had tremendous respect at the time, assured us – and presumably Trump as well – that there was indeed enough fraud to overturn the election, and that he had the proof. But even if that had been true, the remedy is in the courts, not the street.
(Incidentally, Giuliani’s proof was never forthcoming. There was certainly the usual amount of fraud, and maybe more, but there’s no proof that it was enough to overcome Biden’s win. The notion that the courts never allowed such evidence to be presented is mostly incorrect and, in any event, it did not stop Giuliani or others from presenting their evidence to the court of public opinion. But they didn’t. Even to this day, they have not offered proof of enough fraud to overturn the election.)
The second issue dogging the Colorado decision is that rebellion and insurrection against the United States is a federal crime. Trump has not been tried or convicted of any such crime. To say “we all know he’s guilty from what we’ve read online” is not how the American justice system is supposed to work.
For a state court judge and then the supreme court of that state to, in effect, convict him of that crime without a jury or even a trial on that crime, but instead as an ancillary issue in a different kind of proceeding, is unfair. It’s a backdoor insurrection conviction.
As such, it’s probably a violation of another key element of the 14th Amendment, the Due Process Clause. That clause declares that no state shall “deprive any person of life, liberty, or property, without due process of law.”
Unlike the insurrection clause, the Due Process Clause has been applied thousands of times.
Now, let’s forget about the legalisms for a moment. The Supreme Court is always conscious that its power is like gasoline in a gas tank. The more of it they use, the less of it they have. They’re still smarting from criticism over the 5-4 decision in Bush v. Gore back in 2000. Chief Justice Roberts is especially wary about overreaching by the Court.
Their instinct will be to let the people, not the courts, decide Trump’s fitness for office. They’ll reverse the Colorado decision not on substantive grounds that he did not engage in an insurrection, but on Due Process grounds that he never got his day in court.
That would effectively end the matter. Even the most serious of the criminal cases against Trump do not charge him with insurrection. So, he probably won’t get his day in court on the insurrection crime because he’s never been charged with it.
What he will get is his day at the polls next Nov. 5. That’s as it should be. This is too important for judges to decide. It’s a matter for the people.
Glenn Beaton practiced law in the federal courts, including the Supreme Court. The views herein are his alone, and should not be attributed to any other person or organization.
the Aspen beat 
I hope Glenn will take a look at https://election-integrity.info/2020_Election_Cases.htm If he does, will he continue to say what he wrote here: “The notion that the courts never allowed such evidence to be presented is mostly incorrect …”?
Honest question. I’m not a lawyer, and I haven’t examined that voluminous table in any detail. (I’d just saved it for my archives.)
The essential claim in the table is that only 31 out of 92 decisions involved the substance of their cases.
The figure that only 31 out of 92 decision involved the substance of the claims is a little misleading. Some of the temaining 61 were dismissed for lack of evidence, or were consolidated with other cases or went to a split verdict. Most of those 61 were dismissed for lack of standing by the plaintiff — meaning the plaintiff was somebody who could not show a particularized injury, which is a basic requirement for bringing a lawsuit.
Notably, the cases that were not decided on the merits did not preclude the plaintiff from presenting his evidence in the court of public opinion. But few did.
I think the lack of standing argument is a way of dismissing the issue without having to examine the evidence. In a national election every citizen should be considered to have an interest in its integrity.
In Clintonesque fashion, I will say that whether there was “proof” of enough “fraud” in the 2020 election to have affected its outcome depends on what the definitions of “proof” and “fraud” are. Strictly speaking, “proof” is merely confirmation of a fact by evidence. “Evidence” is anything tending to prove or disprove a point at issue, subject to rules governing admissibility. (Yes, we are both trained lawyers, so I’m talking like one here.) Recently, a poll was taken in which 20% of the respondents admitted to violating the law when completing mail-in ballots, i.e., they committed “voter fraud”. Given the preponderence of democrats using such ballots, it can be assumed that more than half of the violators were democrats, and further assumed that they cheated to favor their party and its nominee. So we have over 65,000,000 mail-in ballots cast, and assuming the veracity of the poll, approximately 13,000,000 of those ballots should have been disqualified. The total of votes cast for Biden was allegedly 81,000,000. However, his electoral victory came from Pennsylvania, Georgia, Michigan, Wisconsin and Arizona, where the total difference in votes between Trump and Biden was around 44,000. It has been estimated that less than a 3% difference in votes made the difference in these swing states. Putting all of this together as best I can, I conclude that there was sufficient “evidence” of “fraud” to have affected the outcome of the election. And to further conclude, I say, “So what?” It’s over, but many of the legitimate Biden voters are suffering something like buyer’s remorse and as time has passed, it has become abundantly clear that democrats will, if they did not already do so, resort to “any means necessary” to defeat Trump again, which by definition includes voter fraud. And to finally conclude, I am sorry to say that I fear that Trump’s election, should it come to pass, will probably not stop the descent of America to a cultural, social and economic “crush depth” from which it can not surface.
Your statistical analysis is not frivolous, Steve. I think the weakest element of it is the poll that 20% of mail-in voters admitted to violations.
I’m guessing that many of those violations are technical ones, such as filling out and signing the ballot for an elderly parent, but in accordance with the parents wishes.
In any event, we are on the same page with regard to the impact of all this. Mail-in ballots certainly encourage fraud, as we see in the egregious incidents of ballot harvesting.
As for the future of the country, I am cautiously optimistic that the tide has turned. We will see, or at least our children will.
I am sad for the country and glad I am old. I know just enough history to know how this ends. Tom
President Trump has not been charged with a federal insurrection .. no indictment nor trial…
Then a State court – 4 Ivy League grads voted to disqualify… 3 Denver Law grads voted not to disqualify… Ivy League no longer teaches Constitutional law? ~ Jason Willick .
The Left, i.e., Democrats, Socialists, progressives, liberals, or whatever their latest nom de guerre may happen to be, have a penchant for constantly bleating that “democracy” is at risk from Trump and the mega MAGA super duper Republicans. (Heh.)
So what these leftist supreme court judges in Rocky Mountain High are essentially doing is using undemocratic means to “save democracy” from itself. Isn’t this a lot like saying we must destroy democracy in order to save democracy?!?
This all hearkens back to another bitterly and politically divisive period of American history … the Vietnam Era. The utter futility and hypocrisy of the political leadership who promulgated the Vietnam conflict probably became glaringly obvious when in 1968 a U.S. Army major was quoted saying “It became necessary to destroy the town to save it.”
See: https://aphelis.net/destroy-village-order-save-unknown-1968/
They say that history repeats itself, maybe not necessarily in exact sequence or events, but there are definitely similarities between our current political hostility and division now and what was occurring in the late 1960s and early 1970s.
Perhaps another quote should be resurrected, if only to remind us to learn from the past so we can make better decisions for the future …
“Those who fail to learn from history are doomed to repeat it.”
― George Santayana
Reference: https://www.goodreads.com/quotes/1299687-those-who-fail-to-learn-from-history-are-doomed-to
In the meantime … wishing all a very Merry Christmas Holiday Season and a Happy and Prosperous New Year in 2024.
Note: I specifically OMIT from my holiday wishes the fake Marxist holiday called Kwanza, as it was created (during the Vietnam Era) by a psychopathic FBI snitch who was later convicted of kidnapping and torturing two women; this convicted felon actually “teaches” at Cal State University Long Beach, if you can believe it.
G’day!
https://digital.library.ucla.edu/catalog/ark:/13030/hb1h4nb0q7
My comment if you want to post as it seems you have disabled most comments. Bravo Zulu Glenn … comment is as follows: The Left, i.e., Democrats, Socialists, progressives, liberals, or whatever their latest nom de guerre may happen to be, have a penchant for constantly bleating that “democracy” is at risk from Trump and the mega MAGA super duper Republicans. (Heh.) So what these leftist supreme court judges in Rocky Mountain High are essentially doing is using undemocratic means to “save democracy” from itself. Isn’t this a lot like saying we must destroy democracy in order to save democracy?!? This all hearkens back to another bitterly and politically divisive period of American history … the Vietnam Era. The utter futility and hypocrisy of the political leadership who promulgated the Vietnam conflict probably became glaringly obvious when in 1968 a U.S. Army major was quoted saying “It became necessary to destroy the town to save it.” See: https://aphelis.net/destroy-village-order-save-unknown-1968/ They say that history repeats itself, maybe not necessarily in exact sequence or events, but there are definitely similarities between our current political hostility and division now and what was occurring in the late 1960s and early 1970s. Perhaps another quote should be resurrected, if only to remind us to learn from the past so we can make better decisions for the future … “Those who fail to learn from history are doomed to repeat it.” ― George Santayana Reference: https://www.goodreads.com/quotes/1299687-those-who-fail-to-learn-from-history-are-doomed-to In the meantime … wishing all a very Merry Christmas Holiday Season and a Happy and Prosperous New Year in 2024. Note: I specifically OMIT from my holiday wishes the fake Marxist holiday called Kwanza, as it was created (during the Vietnam Era) by a psychopathic FBI snitch who was later convicted of kidnapping and torturing two women; this convicted felon actually “teaches” at Cal State University Long Beach, if you can believe it. G’day! https://lidblog.com/wp-content/uploads/2020/12/img-1.jpeg https://digital.library.ucla.edu/catalog/ark:/13030/hb1h4nb0q7
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I appreciate Glenn’s opinion and the intelligent replies that sent me looking up historical details. I am furious at the Colorado so-called Supreme Court and the partisan hacks who hijacked the decision. I am also furious that our self promoting and fame seeking Secretary of State went crowing about the decision on mainstream media where her statements charged and convicted Donald Trump of insurrection. Imagine her disappointment when she realizes that Jena Griswold does NOT have that power.
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