Colorado Judge Rules that Trump Engaged in Insurrection, but can still run

[NxNW]

I read an opinion on social media by someone named Jay Kuo that stated as follows:

The opinion, and importantly all of the judge’s factual findings, line up pretty much against Trump. She finds he engaged in insurrection. She finds the First Amendment did not protect his speech at the Ellipse. But then she bafflingly gives him a pass, holding that the presidency is not an office within the meaning of Section 3 of the Fourteenth Amendment, that the president is not an officer of the United States, and that he did not in fact take an oath to “support the Constitution of the U.S.”

Maybe the judge wanted to queue this all up for the appellate court, but not be the target of MAGA hate for keeping Trump off the ballot. I have zero proof that this happened, and there could never be any, so I’m admittedly engaging in a thought experiment here. But when the other reasons don’t make much sense, you’re often left wondering if the wildest one is actually true.

Stay with me a moment on this, and consider this: Whether she did it because she just got the law really wrong, or because she didn’t want to go down in the history books (and be in the headlines) as the judge who knocked Trump off the first state presidential ballot, she did tee this up almost perfectly for a successful appeal.

After all, if the only thing that gets reversed is her ruling about Trump not being an officer for purposes of Section 3, then we are essentially left with a ruling that he *can* be kept off. Except it won’t be her making that ruling. It will be a higher court, perhaps even the Supreme Court. If I were a district court judge sitting on this case and didn’t want my family targeted and harassed and threatened for all time, this path certainly would cross my mind.

It’s certainly an interesting case now that is heading up for appeal. It will be very hard to knock out her factual findings, but not as hard to knock out the very wobbly legal grounds she has for ruling Trump’s way. In other words, this ain’t close to over.

 

[durangodawood]

I read an opinion on social media by someone named Jay Kuo that stated as follows:

.....Maybe the judge wanted to queue this all up for the appellate court, but not be the target of MAGA hate for keeping Trump off the ballot. I have zero proof that this happened, and there could never be any, so I’m admittedly engaging in a thought experiment here. But when the other reasons don’t make much sense, you’re often left wondering if the wildest one is actually true......

Its speculation. But its hardly wild speculation that a judge might want to sidestep retributive right wing threats and violence.

 

[Hank77]

That's not a great reading, to say the least. The phrase "hold any office" includes Presidency. To engage in insurrection goes against the oath to "preserve, protect, and defend." It's like she got paid off and made it work.

I think she's hoping it will go to the SCOTUS to define the verbiage.

 

[Hank77]

It's the official "order" of the court and it's filled with opinion.

For example, the judge chooses to use the "Brandenburg" standard of "incitement" instead of an objective analysis of Trump's speech as requested by his lawyers.

The Brandenburg standard involves a lot of speculation and opinion about "intent" and "interpretation" of the words he said to the audience. From the Order....

First, before undertaking the Brandenburg analysis, the Court addresses the argument Trump made during its motion for a directed verdict that the Court ought to consider only the “objective meaning” of the language at issue. The Sixth Circuit considered and rejected the importation of an “objective analysis” in Nwanguma, and this Court likewise finds that “objectivity” is not a required part of the Brandenburg
test. 903 F.3d at 613.

It's not objective....it's entirely subjective.

It's her opinion.

Let's be honest too...it's a bad opinion.

Her excuse for not removing him from the ballot for the "insurrection" she believes he led is that the office of the President isn't that of a government officer lol. Seriously. She also claims that for whatever reason...because those writing the 14th amendment didn't list the president specifically, and because the oath of office for the president doesn't include the word "support" but rather includes words like "defend" and "protect" she can't remove him from the ballot lol.

In short....she stretched the legal meaning of incitement to include her rather elastic interpretation of Trump's intent when giving his speech to the crowd on January 6th (not his actual words though...she isn't concerned with what he actually said) so she could call him an insurrectionist....but just because he was elected to the office of President of the USA doesn't mean he's an officer of the government lol and objectively, the words "support" and "defend" are different so she ruled in Trump's favor.

She doesn't like him so she took a cheap shot that holds no legal weight, and ruled in his favor because she knew it would get overturned on appeal otherwise.

Let me ask you....do you think this would be happening if there were any real chance of him being imprisoned for something before the election?

In individual states with lots of Democrats? Yes, most definitely. But in this case, it was 3 Republicans and 2 Unaffiliated voters in Colorado with a group out of DC. It doesn't surprise me at all. Colorado would do it just to make a statement.

 

[Hank77]

So she stretched as hard as possible to give find him involved in an insurrection but told everyone that this particular clause in the 14th applies to everyone except the president lol.

Actually, she made the same arguments that have been made by opposing Constitutional lawyers and judges such as lawyer Jonathan Turley and Judge J. Michael Luttig.

Judge Luttig explains why Donald Trump is disqualified from the presidency

The conservative retired jurist broke down the 14th Amendment, Trump's immunity argument, and what a second Trump term would mean.

www.msnbc.com

 

[Ana the Ist]

I think she's hoping it will go to the SCOTUS to define the verbiage.

Eh...possibly. I think it's more likely she read the other judges' opinions are agrees that in principle....using a civil trial to hold a presidential candidate responsible for "inciting" an insurrection and therefore requires the removal of that candidate from the ballot flies in the face of the very idea of a representative democracy.

It's simply too small a court and too small of an accusation to justify denying the citizens of the nation a choice for President.

She knows that the clause in the 14th applies to the president and its absurd to suggest that those who wrote it would have needed to list every single office of the government it is intended to apply to. She had to hand Trump’s team a judgement they wouldn't appeal so she did....but she took a shot at him to make headlines.

 

[JSRG]

Eh...possibly. I think it's more likely she read the other judges' opinions are agrees that in principle....using a civil trial to hold a presidential candidate responsible for "inciting" an insurrection and therefore requires the removal of that candidate from the ballot flies in the face of the very idea of a representative democracy.

It's simply too small a court and too small of an accusation to justify denying the citizens of the nation a choice for President.

I do not think it flies in the face of the very idea of a representative democracy any more than other requirements of the presidential office, such as not having served two terms prior, being a natural born citizen, and being 35 years or older.

Or perhaps your more specific problem is that a district court shouldn't be deciding the issue. In that case, the problem is not with her decision, but with the structure of the court system that caused it to go to her. A judge has to make a decision in a case they're presented with, and "well, it's too big for me, so I won't answer! Maybe the appeals court will figure it out!" is not really an acceptable one.

She knows that the clause in the 14th applies to the president and its absurd to suggest that those who wrote it would have needed to list every single office of the government it is intended to apply to. She had to hand Trump’s team a judgement they wouldn't appeal so she did....but she took a shot at him to make headlines.

One absolutely does have to list every single office of the government it is intended to apply to. One may not need to list them all individually, but one must still list a category that includes it. The argument is that no category listed includes the president.

Indeed, I notice how many people who disagree with the ruling... don't explain why it's wrong. They just declare it's somehow obviously wrong, never interacting with the arguments at all.

Let us take some posts in this topic as examples:

"It does seem flabbergasting that this court somehow thinks the law wouldn't apply to a president."

"Sounds like this judge is afraid of the consequences of upholding a plain reading of the constitution."

"That's not a great reading, to say the least. The phrase "hold any office" includes Presidency. To engage in insurrection goes against the oath to "preserve, protect, and defend." It's like she got paid off and made it work."

One may notice a consistent pattern: They simply declare the decision is ridiculous without actually addressing the reasons it gives. If one disagrees with them, fine, but explain how they're wrong. The decision gives its reasons, and the section on the oath is relatively short and would not take long to read.

To be fair to people who have not read it, I myself had a lot of trouble finding the blasted thing, because few online articles reporting on it bothered to link to it (this is distressingly common when discussing court decisions). If people weren't able to find it, it's not exactly their fault if they don't know what the points made are. Well, here it is. The specific discussion of whether the 14th Amendment applies to the president is relatively short, running from pages 95 to 101, a mere six pages, easy reading (honestly I think far more time should have been spent on it--others who agree with the conclusion, like Tillman, have written much lengthier works which go into more detail--but it still means it's easy for anyone to read it).

As counterintuitive as it seems at first, there actually is a reasonable argument that the presidency is not included in the list of offices that, if one has taken an oath for, disqualify you if you engage in insurrection or rebellion. I would recommend people again read the applicable six pages of the opinion, but I'm also aware some people never bother to read links, so I'll give what seems to be the strongest point to me. First, for reference, here is the Fourteenth Amendment's applicable section:

"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. But Congress may, by a vote of two-thirds of each House, remove such disability."

I have bolded the applicable part (a separate argument, which the opinion also accepts, is that the first list--the group of positions one is banned from--does not include the presidency, which I find a weaker argument). The question is, is the presidency included in the bolded? The only one that could possibly fit the presidency is "officer of the United States". While the President is an officer, that does not mean he necessarily fits the specific usage of an "officer of the United States." Now let's take a look at Article II Section 3, where in the Commissions Clause, it says the President "shall Commission all the Officers of the United States." Note the usage of the word all. If the President commissions all officers of the United States, then the President is not an officer as he does not commission himself; otherwise he would be like the impossible-to-exist man who shaves all men in town who do not shave themselves.

Yes, I know there are counterarguments to what I noted as well as the other things mentioned in the opinion, which I think it could have done a little more in addressing (admittedly, its conclusion was not specifically that it definitely excluded the president, but that there was enough uncertainty that one should defer to the democratic process on it). But people should be bringing up those counterarguments if they disagree, not simply dismissing it. Again, perhaps people just couldn't find the opinion, but it is available now so perhaps if anyone has an issue with it they can know explain exactly what is wrong rather than a simple dismissal.

 

[NxNW]

Seems to me that the President is an executive.

 

[JSRG]

Seems to me that the President is an executive.

Executive is only used in the phrase "or as an executive or judicial officer of any State". The presidency is an executive, but not an executive of a state (as it is a federal office).

 

[NxNW]

Executive is only used in the phrase "or as an executive or judicial officer of any State". The presidency is an executive, but not an executive of a state (as it is a federal office).

He's part of the Executive Branch.

 

[JSRG]

He's part of the Executive Branch.

But not the Executive Branch of any State, so it doesn't apply. I just explained this.

 

[public hermit]

"That's not a great reading, to say the least. The phrase "hold any office" includes Presidency. To engage in insurrection goes against the oath to "preserve, protect, and defend." It's like she got paid off and made it work."

You need to cite your sources. And, it's not a great reading. Is that an assertion? Yes. Is it false? Let's debate. I say the judge was so strict in her reading that she absolved herself from actually making a judgment, which is all too easy. What say you?

 

[Pommer]

Eh...possibly. I think it's more likely she read the other judges' opinions are agrees that in principle....using a civil trial to hold a presidential candidate responsible for "inciting" an insurrection and therefore requires the removal of that candidate from the ballot flies in the face of the very idea of a representative democracy.

I think even the Roberts Court (as constituted as it is at the time of this post) would be hard pressed to rule that a clause in a duly ratified Amendment (150 odd years ago, to boot), is “unconstitutional“.

 

[JSRG]

You need to cite your sources.

I didn't want to be going after people in particular, as my issue was in general, and as I noted people might not have been able to find the opinion. As a result, I just offered a few random quotes as examples without attribution, to try to avoid giving shade to people If someone absolutely had to figure out where they came from, the topic is only 3 pages long anyway.

And, it's not a great reading. Is that an assertion? Yes. Is it false? Let's debate. I say the judge was so strict in her reading that she absolved herself from actually making a judgment, which is all too easy. What say you?

You invite debate, but don't offer an argument to back yourself up. That is my point. People--both in this topic and in most places in popular discourse--simply say it's wrong. No explanation is offered other than a simple denial that shows no apparent knowledge of what the arguments they're rejecting even are; a few that seem to be more in the know (e.g. legal scholars) do weigh in on it, but apart from those I see people reject the claim without responding to or possibly being even aware of its reasons, even though they're right there in the opinion. I'm not expecting people to spend the time reading the more lengthy arguments the president is exempt like Blackman and Tillman's 54-page essay from 2021 on the subject, but I do expect them to at least read the mere six pages (double-spaced, for the record!) of the opinion that discuss it, again available here. That's why I made sure to link it, so people could read it. Pages 95 to 101 are right there for anyone to read. The explanation is there. If people want to say it's wrong, then offer an argument beyond simple bewilderment.

So let's look back at your post:

That's not a great reading, to say the least. The phrase "hold any office" includes Presidency. To engage in insurrection goes against the oath to "preserve, protect, and defend." It's like she got paid off and made it work.

It simply asserts that the phrase "hold any office" includes Presidency. No response is given to any argument offered in the opinion. To be fair, I find the claim that the first part of the disqualification clause (labeling the offices one is disqualified from) includes the president to be a weak argument... but again, if it's wrong, actually address a single point rather than just saying it's wrong. And nothing is stated at all in regards to what I think is a better argument, which is that even if one disqualified is excluded from becoming president the wording of it nevertheless excludes someone who only took the presidential oath from being disqualified on the grounds that the "officers of the United States" does not include the President.

And that is my issue, how many people just declare the opinion to be wrong on this point without actually interacting with it in any way. Interestingly, the people who deny that Trump engaged in insurrection or rebellion, I have noticed, tend to be more likely to make some kind of argument on the subject--maybe I don't necessarily agree with those arguments but they at least show some awareness of the arguments one can make, rather than an unexplained flat denial.

Simply declaring an opinion to be wrong without addressing any point it makes, or even really offering an argument of their own against, even though it's again a mere 6 pages, strikes me as basically doing what the guy on the right in this video does, in simply contradicting without offering any reason:

For the record, I'm currently undecided on the conclusion myself on whether the presidency is exempt; having looked into the arguments on the issue (by the people who make them rather than those who simply declare something is wrong without addressing or possibly even knowing the argument), I feel there are some interesting points on both sides, so I definitely have sympathy for the conclusion of the opinion which is that since it's a bit ambiguous it makes more sense to let the election go forward. I do wish the opinion had done more to answer the counterarguments I've seen, though perhaps some of them weren't brought up in the trial itself.

 

[NxNW]

But not the Executive Branch of any State, so it doesn't apply. I just explained this.

It doesn't specify executive branch of any state. "Of any state" applies to "judicial officer", not to "executive". If you ask me if I have a cat, or a dog with orange hair, the orange hair part of the question only applies to the dog.

 

[essentialsaltes]

It doesn't specify executive branch of any state. "Of any state" applies to "judicial officer", not to "executive". If you ask me if I have a cat, or a dog with orange hair, the orange hair part of the question only applies to the dog.

I think in the context of the longer phrase, it mentions federal positions first, and then moves on to state positions.

 

[essentialsaltes]

Trump critics appeal Colorado ruling that said ‘insurrectionist ban’ doesn’t apply to presidents​

The group trying to remove Donald Trump from the Colorado ballot based on the 14th Amendment’s “insurrectionist ban” has filed an appeal to the Colorado Supreme Court, hoping to overturn a lower-court ruling that said the ban doesn’t apply to presidents.

 

[stevil]

and too small of an accusation to justify denying the citizens of the nation a choice for President.

LOL. It's not like he lied about having a personal affair. He instigated a violent insurrection, an attack on senators and his own VP at the Capitol in an attempt to stop the peaceful transition of power to the duly elected.
Just a small accusation. ROFL

 

[rambot]

This doesn't make sense to me.

Frankly, this seems like the exact OPPOSITE of sense if you want to avoid a Tyranny. If I understood this correctly, she's saying that this particular section is not applicable to the highest office in the country and yet ALL other levels of government and all other positions are bound do it?

Isn't that basically, how a Tyrant operates? Rules for all but him?

 

[Reasonably Sane]

The ruling is actually quite interesting. Copying my other post.

Takeaways from the blockbuster Trump ‘insurrectionist ban’ ruling​

The 102-page decision was a win for Trump, but it read more like a condemnation.

Colorado District Judge Sarah Wallace concluded – based on testimony of US Capitol Police officers, lawmakers, clips from Trump’s January 6, 2021, speech and expert testimony about right-wing extremism – that Trump engaged in the January 6 insurrection.

“The Court finds that Trump’s Ellipse speech incited imminent lawless violence,” she wrote.

[However]

The provision [in the 14th Amendment] says, “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,” if they took an oath to “support” the constitution and then engaged in insurrection.

But it doesn’t say anything about the presidency. And furthermore, the presidential oath doesn’t say anything about “supporting” the Constitution – it’s to “preserve, protect and defend” the Constitution.

“Whether this omission was intentional, or an oversight is not for this Court to decide,” Wallace said, noting that Trump was the first president in US history to have never served in government before ascending to the White House, meaning he never swore the oath to “support” the Constitution that lawmakers and military officers take.

Add to this the fact that, agree with them or disagree with them, a very large portion of the American public does not believe any sort of insurrection actually happened on Jan 6th.