Denver District Court Judge Sarah B. Wallace
ruled last month that although Trump “engaged in insurrection” within the meaning of Section 3 of the 14th Amendment, the clause — which prohibits a person who did so after taking an oath to “support the Constitution” from holding office again — does not apply to the presidency.
The plaintiffs, who are backed by the nonprofit Citizens for Responsibility and Ethics in Washington,
appealed that ruling to the state Supreme Court, asking it to toss out what they call Wallace’s “nonsensical” finding that Section 3’s reference to “officer(s) of the United States” does not include the president. Trump’s attorneys, who filed their own appeal, want the Supreme Court to review other issues in the case, including the finding that the former president engaged in insurrection.
“There are a lot of strong opinions on this case, on both sides of the aisle,” Chief Justice Brian Boatright said as he opened Wednesday’s hearings. In advance of oral argument, the court received hundreds of pages of amicus or
friend-of-the-court briefs from legal scholars, liberal advocacy groups and dozens of Republican party and state officials from across the country.
The Colorado case is widely expected to be appealed to the U.S. Supreme Court regardless of how the state Supreme Court rules. Similar challenges in several other states, including Minnesota and Michigan, have been rejected by the courts.
One month ahead of the first-in-the-nation GOP presidential caucus in Iowa, Trump — who was
indicted in August by federal prosecutors who allege that his “pervasive and destabilizing lies” about the 2020 election “targeted a bedrock function of the United States federal government” — remains the Republican frontrunner by a wide margin. His campaign has called the 14th Amendment case an attempt at “election interference” by “far-left wacko groups.”
Colorado Secretary of State Jena Griswold, a Democrat, has not taken a position on whether Trump is disqualified under Section 3. In a statement Wednesday, she said the state Supreme Court’s ruling will have “tremendous implications for our democracy.” Such a decision is likely to come relatively quickly, ahead of a Jan. 5 deadline to certify candidates for Colorado’s March 5 presidential primary.
“I look forward to a timely decision from the Court as we approach the Jan. 5 ballot certification deadline for the Presidential Primary,” Griswold said. “I will continue to follow the guidance of the Courts on this important issue.”
An ‘officer of the United States’?
After the 14th Amendment was ratified in 1868, Section 3 was aggressively enforced for a period of several years before Congress enacted a broad amnesty to nearly all ex-Confederates in 1872. It has been exercised in only a handful of cases in the last 150 years, but it received new scrutiny in the wake of the Jan. 6 attack on the Capitol. In
another case brought by CREW last year, a New Mexico court removed from office a GOP county commissioner who had participated in the attack.
The clause bars a person from “hold(ing) any office, civil or military, under the United States” if they have “previously taken an oath … as an officer of the United States” to support the Constitution, and then engaged in insurrection.
Wallace argued in her ruling that Section 3’s reference to “any office … under the United States” does not include the office of president, and its reference to individuals who have “taken an oath … as an officer of the United States” does not apply to someone, like Trump, who has only taken the presidential oath of office. Such arguments were first put forward by two conservative law professors, Josh Blackman and Seth Tillman, in a
2021 paper.
Attorneys for the plaintiffs said the ruling ignores
substantial evidence in the historical record indicating that the drafters of the 14th Amendment intended to include the presidency, and runs “contrary to Section 3’s core purpose.”
“It would be strange to say the office of the presidency is anything else (than an an office under the United States),” said Jason Murray, an attorney for the plaintiffs. “The Constitution uses the phrase ‘office under the United States’ a bunch of times in context that I think pretty clearly include the president.”
“If it was so important that the president be included, why not spell it out?” Justice Carlos Samour asked Murray, pointing to the clause’s explicit references to a “Senator or Representative in Congress,” but not the president.
Murray argued their inclusion is explained by the fact that the Constitution refers to members of Congress holding “seats,” not offices.
“They used a really broad phrase — any ‘office under’ — and then they wanted to include the handful of things that may not fall in that catch-all,” he said. “Everybody knew that the presidency was an ‘office under.’”
Later, Trump attorney Scott Gessler, a former Republican Colorado secretary of state, told justices that “the president is an officer of — to the extent we have that concept — of the Constitution.” And he argued that Section 3’s reference to an “oath to support the Constitution” can be distinguished from the presidential oath of office, which uses the language “preserve, protect and defend the Constitution.” But several justices voiced skepticism of such arguments.
“How is it not absurd to say everybody who engaged in insurrection can’t serve in office except the president or former president?” asked Justice Richard Gabriel. “How is that not absurd?”
“It seems to make no sense to me … that if the purpose of Section 3 was to punish oath breakers, that you would set up a provision that punishes those who break the lesser oath but exempts persons who break the arguably more serious oath, to ‘preserve, protect and defend,’” said Justice Monica Márquez.
“Is it a lesser oath?” replied Gessler. “I think that’s a presumption we’re making that may or may not be warranted, because there’s not much case law defining the two.”
‘Real fragility’
Other issues raised by Trump’s legal team during Wednesday’s hearing involved procedural and jurisdictional questions — they say state court was an “inappropriate forum” for constitutional litigation — as well as whether Trump’s speech was protected by the First Amendment and even whether the Jan. 6 attack meets the definition of “insurrection.”
“A violent mob breached the Capitol when Congress was performing a core constitutional function,” Justice William Hood III said to Gessler. “In some ways, that seems like a poster child for insurrection. Why is that not true?”
“(Insurrection) is more than a riot. It’s more than a three-hour riot in one building,” Gessler answered. “We think (Jan. 6 is) properly characterized that way, and not as an insurrection.”
But Eric Olson, an attorney for the plaintiffs, argued that Trump and his role in the events Jan. 6 are precisely what the drafters of Section 3 — which he called the Constitution’s only “self-defense mechanism” — intended it to be used for.
“Our Constitution is just a document,” he said. “Committing ourselves to that Constitution, the rule of law, comes with real fragility. Because our Constitution commands no armies. It has no police force.”
“Trump’s argument that because he’s popular, that should affect how we interpret Section 3 here, could not be more dangerous. Jefferson Davis would have gotten a lot of popular support right after the Civil War,” Olson added. “If we say that this conduct by this person is not enough under the Constitution, what we do is empower Trump and others to use more political violence to attack our democracy.”
Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.
