The Volokh Conspiracy
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Colorado Court Rules Trump Engaged in Insurrection, but Cannot Be Disqualified Under Section Three Because the President is not an "Officer of the United States"
The court ruled against Trump on his strongest arguments, but accepted a weak one.
Yesterday, a Colorado trial court ruled that Donald Trump engaged in insurrection, but still cannot be disqualified under Section 3 of the Fourteenth Amendment, because the president is not an "officer of the United States." The Court thereby rejected relatively more plausible arguments against disqualifying Trump, but accepted a very weak one.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." To my mind, the most difficult issue raised by Trump's effort to stay in power after losing the 2020 election is whether his conduct amounted to "engaging in insurrection" or giving aid and comfort to the enemies of the United States. By contrast, I think it's pretty obvious that the president qualifies as an officer of the United States. It would be utterly ridiculous if Section 3 disqualifies an insurrectionist low-level bureaucrat, but not an insurrectionist who holds the most powerful office in the land. For obvious reasons, the latter is a vastly greater menace than the former.
Judge Sarah Wallace nonetheless managed to somehow rule against Trump on his best argument, while ruling for him on his worst.
I think it's pretty obvious that the January 6 attack on the Capitol qualifies as an "insurrection." After all, the attackers were trying to use force to block the transfer of power to the rightful winner of a presidential election. Whether Donald Trump was closely enough connected to these events is a closer question. After all, he didn't personally storm the Capitol himself, and his statements before the attack can be interpreted in different ways. It is also debatable whether his earlier efforts to illegally overturn the election results qualify as engaging in insurrection or giving "aid and comfort" to those who did.
In a detailed and compelling analysis Judge Wallace explains why Trump's actions on and before January 6 do qualify as engaging in insurrection, and are not protected by the First Amendment. Among other things, she shows that Trump's exhortations to the mob to "fight like hell" are best interpreted as literal incitements to violence, rather than merely figurative hyperbole - especially in context of his longstanding advocacy and defense of political violence by his supporters:
The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being "stolen," and that something needed to be done….
Knowing of the potential for violence, and having actively primed the anger of his extremist supporters, Trump called for strength and action on January 6, 2021, posturing the rightful certification of President Biden's electoral victory as "the most corrupt election in the history, maybe of the world" and as a "matter of national security," telling his supporters that they were allowed to go by "very different rules" and that if they didn't "fight like hell, [they're] not going to have a country anymore." Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder…
Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and leaders using similarly strong, martial language, such as calling on supporters to "fight" and "fight like hell." The Court acknowledges the prevalence of martial language in the political arena…. This argument, however, ignores both the significant history of Trump's relationship with political violence and the noted escalation in Trump's rhetoric in the lead up to, and on, January 6, 2021. It further disregards the distinct atmosphere of threats and calls for violence existing around the 2020 election and its legitimacy. When interpreting Trump's language, the Court must consider not only the content of his speech, but the form and context as well….
Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump's speech.
The judge also explains in detail why incitement of the type Trump engaged in qualifies an "engaging" in insurrection, and why the attack on the Capitol was indeed an insurrection, and not merely a non-insurrectionary riot.
Much of the analysis in this part of the decision rests on factual findings about Trump's actions and motives, which are entitled to broad deference from appellate courts. In Colorado courts, as in federal court, trial courts' factual conclusions are only reversible on appeal if there is "clear error."
In contrast to the long and detailed analysis of the insurrection issue, which goes on for some 35 pages, Judge Wallace's discussion of whether the president is an "officer of the United States" is short, cursory, superficial - and extremely weak. She emphasizes that "To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because…. Section Three explicitly lists all federal elected positions except the President and Vice President." The other elected positions, however, are all legislative or electoral (members of Congress and the electoral college). Unlike executive branch officials, they cannot issue legally binding orders (as opposed to merely voting on laws), and therefore might not meet an ordinary language intuitive definition of an officer as a person who has the power to issue binding orders to subordinates. Not so with the president, who obviously does have that authority.
The presumption that the presidency is excluded unless specifically listed is the exact opposite of the on Judge Wallace should have made. To the contrary: it would be absurd to include all other elected and appointed officials - including low-level bureaucrats - while excluding the president - the official with the greatest power, and thus the one whose involvement in insurrection poses the greatest potential threat. Such an exclusion violates the longstanding rule that courts should avoid interpretations of law that lead to absurd conclusions. If such a result is clearly compelled by the text, there may be no choice. But there is no such indisputable clarity here. Judge Wallace "agrees that there are persuasive arguments on both sides." If so, she should have picked the one that does not lead to absurdity.
Judge Wallace cites no direct contemporary evidence that people at the time of the ratification of the Amendment thought the president was not an "officer of the United States" under Section 3. Scholars such as Mark Graber have provided extensive evidence that they did (see here and here). In addition, to the extent that constitutional interpretation should be based on the "ordinary meaning" of words as understood by members of the public, it is pretty obvious that an ordinary reader would assume that the president is covered, and would not embrace the absurd conclusion that it and the vice presidency are the only offices excluded. That's the kind of hair-splitting sophistry that leads ordinary people to hate lawyers!
Judge Wallace relies heavily on inferences from passages in the original 1787 Constitution suggesting that the president is not an "officer of the United States," even though the original Constitution also repeatedly refers to the presidency as an office. The inferences the judge relies on are highly questionable. But even if correct, they have little bearing on the meaning of "officer" under Section Three, enacted some eighty years later.
Finally, Judge Wallace claims the presidency isn't covered because Section 3 applies only to officers who have taken an oath to "support" the Constitution, whereas the President takes an oath to "preserve, protect and defend the Constitution of the United States." But, as she admits, "an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution." Thus, there is no meaningful difference between the two, and no reason to think that a reference to one necessarily excludes the other. At the very least, this kind of circuitous inference isn't enough to justify an absurd conclusion.
Unlike the court's ruling on the insurrection issue, the decision on the meaning of "officer of the United States" is a purely legal conclusion, rather than one that rests at least in part on judgments of fact. It therefore is not entitled to any deference on appeal.
This decision is likely to be appealed all the way to the Colorado Supreme Court. It could even potentially reach the federal Supreme Court. The only certainty here is that the legal battle over Trump and Section 3 is far from over.
Judge Wallace's ruling is nonetheless notable for its thorough analysis of the insurrection issue, for its far less defensible ruling on whether the president is an "officer of the United States," and for being the first decision on Trump's eligiblity that reaches the merits. Previous rulings by the Minnesota Supreme Court (which ruled that Trump was eligible to be on the GOP primary ballot because there is no legal requirement that a primary ballot be limited to candidates legally eligible for the office they seek) and a Michigan state court (which dismissed the whole issue as a nonjusticiable "political question"), dismissed claims against Trump on procedural grounds, which leave open the possibility that he could be legally disqualified. If the Michigan decision is correct (I think it isn't), state election officials could potentially remove Trump from the ballot on Section 3 grounds, without any judicial review.
