By Quentin Young
A majority of justices on the Colorado Supreme Court recently determined that former President Donald Trump is constitutionally ineligible to hold office again. It was a ruling that resulted from a straightforward understanding of the law and facts.
But the opinion was necessary to correct an alarming error by a lower court judge, and it represented a split decision that was marred by dissents from three of the seven justices, including Chief Justice Brian Boatright. His opinion encapsulates a misunderstanding of — or refusal to accept — Section 3 of the 14th Amendment even among some of the nation’s highest ranking jurists, and it reflects the unfolding failure of U.S. institutions to sustain constitutional order in the face of an existential threat.
The 11 pages Boatright issued in response to Anderson v. Griswold are worth examining as part of the historical record of this precarious moment in the nation’s history, when ruling-class cowardice and complacency have allowed Trump and other adversaries of the United States to maneuver into attack position.
The top justice in Colorado is part of the problem.
In September, six Colorado voters filed a lawsuit in Denver District Court seeking to block Trump from the 2024 presidential ballot. They argued that the 14th Amendment disqualifies Trump as a candidate due to his actions around the Jan. 6 insurrection. Section 3 of the amendment, ratified after the Civil War to deal with former Confederate figures, says no person who took an oath to support the Constitution but then “engaged in insurrection” can hold office in the United States.
The District Court held a five-day evidentiary hearing that included testimony from experts in constitutional history and political extremism. Judge Sarah B. Wallace made several significant and well-justified findings, chief among them that Trump engaged in insurrection. But she also erred in ruling that Section 3 doesn’t apply to presidents.
A majority on the Supreme Court affirmed what Wallace got right and rejected what she got wrong. Though the case is ultimately expected to be decided by the U.S. Supreme Court, the Colorado court ordered the secretary of state to bar Trump from the presidential ballot.
Boatright, however, dissented. Essentially he said that the part of Colorado elections law under which the plaintiffs sued wasn’t up to carrying such a case.
“Simply put, section 1-1-113 was not enacted to decide whether a candidate engaged in insurrection,” Boatright wrote.
The expedited nature of the case before the District Court was not to Boatright’s liking, even though Wallace allowed for many hours of testimony and considered hundreds of pages of briefs. Boatright’s other main complaint was that barring Trump from the ballot under Section 3 is inappropriate “in the absence of an insurrection-related conviction.”
One of the most common objections from Trump supporters to Section 3 challenges is that he was never convicted of insurrection, which can be a criminal offense under federal law. But this objection exhibits basic ignorance of how Section 3 is supposed to work — the provision defines a disqualification from office, not a sentence or punitive measure. You can’t be president if you’re not 35. Similarly, you can’t be president if you took an oath and engaged in insurrection. You could also be indicted for insurrection, but that’s an entirely different matter.
Constitutional scholars understand this. Judges are supposed to understand this. Boatright doesn’t understand it, or he chose not to understand it.
Boatright joined the court in 2011. Though appointed by a Democratic governor, he was a registered Republican until at least 2020. In his last state evaluation, when he was up for a retention vote in 2014, members of the state judicial performance panel found his writing skills lacking. His opinions, they said, “lacked the quality of composition expected of a Supreme Court Justice, and at times did not adequately set forth the analysis supporting them.”
Based on his analysis in the Trump case, Boatright, who is up for another retention vote next year, has made no improvement.
Justices Carlos Samour and Maria Berkenkotter also wrote dissents.
Samour complained that Section 3 is not necessarily “self-executing” — in other words, he thinks state authorities can’t independently wield it absent federal enforcement legislation. Many top Section 3 scholars, in addition to the Colorado Supreme Court majority, dismiss that argument. And Samour expressed reservations about a lack of a criminal insurrection conviction for Trump. Samour, like Boatright, was appointed by a Democratic governor but has been a registered Republican, and he clerked at the U.S. Court of Appeals for the 10th Circuit in Denver for a judge appointed by Republican President Richard Nixon.
Berkenkotter thought the court majority exceeded its authority in deciding the case. In summary, the dissenting judges deemed the Section 3 question a real tough one, and they thought the court was not equipped to decide it.
Among the deepest sources of disillusionment in the Trump era is the failure of laws and institutions to check what is so obviously a domestic enemy. The U.S. Senate, when it declined to convict Trump after his Jan. 6 insurrection impeachment, modeled a status of impunity that other authorities have emulated in countless ways, so that three years later we have a failed-state situation in which the person who led a violent attempted coup is now the leading candidate for president and promising to rule as a dictator.
The framers of Section 3, who had also seen insurrection up close, handed down to subsequent generations of Americans a way to defend against those who would attempt to upend constitutional order. Yes, a person with authority to adjudicate a Section 3 challenge must decide what it means, legally, to engage in insurrection. But it shouldn’t be that hard to conclude that Trump engaged in insurrection — we all watched it happen with our own eyes. The Constitution says he can’t hold office again, and the weight of scholarship says state officials do not have to wait around for congressional permission to ensure that he doesn’t.
This is no time for judges to indulge in misplaced punctiliousness, or to devise a plausible retreat and call it legal restraint. The future of democracy in the United States is at stake. The Constitution provides the tools leaders need to protect it, yet Section 3-rejecting judges in other states, and the dissenters on the Colorado Supreme Court, have instead chosen timidity and cavils. Their clever justifications and legal rationalizations read like a form of self-regard that’s appalling in the face of a MAGA takeover. Boatright’s useless counsel is akin to an usher insisting that patrons walk in orderly fashion to the exits as the theater burns.
The challenge to Trump’s candidacy is likely the most consequential case any of the Colorado justices will ever decide. Three of them registered a historic failure.
Quentin Young is the editor of Colorado Newsline, an affiliate, like the Florida Phoenix, in the nonprofit States Newsroom network.
beachcomberT says
Once again, we have the ironic, elitist viewpoint that judges, not voters, are the ones who must save US democracy
Skibum says
Well it would certainly be appropriate and wonderful if we could depend on American voters and our states’ election systems to save our country’s democracy from those who have been trying to subvert it. But it is naive, and frankly a little crazy, to simply say that it is the voters who have the power to save our democracy when those who have been conspiring together to thwart democracy have engaged in blatant efforts to remove voters from election rolls in the days and weeks leading up to national elections, fraudulently sent false elector names to the U.S. Capitol to replace the real electors that were selected by voters, and have put forth all manners of fake claims and processes in many states by people from one political party who, despite knowing their preferred candidate for federal office lost the election, have denied the vast majority of voters their constitutional right to select the candidate of their choice. When that happens, as it has, then it must be up to the state and federal courts to make the correct decisions that will uphold our election systems, and ultimately, democracy. And I hope and pray that is what will occur because otherwise, our entire elections process in this nation will be no better than those of third-world countries where corrupt people get put into positions of power and the citizens have little or no say over who makes the laws they must live under.
Laurel says
beach: Those who may not agree with you, must be “elitists?”
Well, if we are to vote, and not bring our democracy, and the Constitution, to court, I vote putting Trump in prison. That should work for you, right?
Sherry says
Right On Laurel!
Deborah Coffey says
Courts are not elitist. Their whole purpose is to define and apply LAW. Trump would agree with you, though. If he’s reelected this year, there won’t be any courts for the purpose of defining and applying the LAW. There will only be HIS courts taking retribution on all those who do not support him, immigrants, Blacks, LGBTQs, teachers, women, Jews, Muslims, etc.
Ray W. says
I see we have another wanderer on our hands, walking through life fooling himself or herself.
This is Marbury v. Madison, an 1803 U.S.S.C. decision that firmly established the primacy of the courts to determine with finality the outcome of constitutional disputes; it rejected the argument that other branches of government could determine with finality what the Constitution means. Finality is the key. Our founding fathers knew that people would never be able to resolve certain disputes on their own, to the great harm of everyone and everything around them. Long before we as a people achieved independence from Great Britain, courts were created to obtain the finality necessary to put an end to those certain endless disputes.
There is a difference between arguing what a clause in the Constitution means and deciding with finality what it means. Marbury established not only that the legislative and executive branches would always be permitted to argue what a clause in the Constitution means, but also that those two branches of government lacked the power to determine with finality what it means. This is at the heart of what is called the rule of law. Either we are a nation of laws or a nation of powers, as Hamilton so aptly and perceptively put it when he asked his great question in the first paragraph of Federalist Paper #1: Can human societies ever build a nation of laws based on reason and choice, or are we forever destined to be ruled by accident or force.
Declaring Marbury an “elitist viewpoint” does absolutely nothing to alter the constitutional foundation on which our legal system is based. BeachcomberT is simply engaging in what my mother called the “I wantie” curse; he or she is willing to say anything, to deride anyone, so long as it gets the desired outcome. This is not following reason to whatever end it leads us. This is contorting reason to get the desired outcome.
When Franklin responded to a query by stating that “you” have a republic, if you can keep it, he understood that people like beachcomberT would always exist among us, people who would be willing to undermine law at whim in order to get whatever is wanted at the moment.
Ed says
Ray I need a little help….
If the media reports that the FBI has scant if any evidence that Jan 6 th was anything more than a demonstration/riot, who then has determined an insurrection occurred? No evidence that indicates it was actually an insurrection.
Admittedly some 1069 individuals have been arrested and in some cases charged with crimes- none charged with insurrection.
Felonies, theft, assault, trespassing and destruction of government property but not insurrection.
If an incendiary speech rises to treason, we all have witnessed multiple elected officials guilty.
I am struggling how anyone can leap from a confederate soldier who picked arms, was part of an organized insurrection against the union to Trump. The was no organized armed rebellion on Jan 6 and 3 years later none has been identified. The government was delayed by a few hours but certainly not over thrown.
Before my liberal friends heads explode, I am not justifying Trump or even suggesting he wasn’t at fault. No, I just don’t have your certainty that he is an insurrectionist.
We can’t just keep saying it was an insurrection to make it true.
Ray W. says
I suppose the best way to address your question is to point out that people lie to themselves, people lie to their spouses and families, people lie to their friends and coworkers, people lie to detectives, people lie to prosecutors, people lie to judges and juries, people lie to reporters and people lie on social media. You and I know that we weren’t there that day, so we really don’t know what happened. We do know that there exists competent and reliable evidence that, if accepted by a jury, would be enough to establish that an attempt to promote an insurrection occurred before and on January 6th. The key is that neither you nor I get to make that decision, unless we are selected as jurors in a particular case. It is folly for anyone to argue that former President Trump did not want to remain in office. The question now is how to best wade through the self-serving lies to get at the truth.
More specifically to your point, FBI agents are just a small piece of the overall picture. FBI agents, when signing off on a complaint affidavit, swear to an allegation of probable cause, nothing more, just as any other law enforcement officer is limited to the boundaries of that standard. Prosecutors swear to an allegation of proof beyond a reasonable doubt when they file either an Information and a juvenile Petition, and nothing more. Judges review complaint affidavits at First Appearances and either find the existence of probable cause or not. Judges and juries are tasked with a finding of proof beyond a reasonable doubt or not. There is a tremendous difference between an allegation and a finding. Arguably my most effective day at First Appearances was before Judge Henderson one weekend morning. I was filling in for someone who wanted that morning off. Of the approximately 60 or so complaint affidavits, I voiced objections to at least one of the charges in 13 of them. Judge Henderson found probable cause lacking in 10 of those instances. As a prosecutor, I commonly upgraded or downgraded charges, depending on the circumstances.
In summary, what an agent writes in a complaint affidavit is the bare minimum amount of evidence that is necessary to get the charges past a judge at First Appearances. A Florida Supreme Court opinion held as much some 50 years ago, forbidding all defense attorneys from cross-examining an officer who left language out of a charging affidavit, unless the missing language was directly relevant to the issue of probable cause. A prosecutor has access to far more information than that bare minimum contained in the affidavit. I am getting ready to testify in St. Augustine in a six-year-old murder trial. The complaint affidavit makes up only a few pages. My file consists of 13 banker’s boxes of paperwork, with just under 200 audio- and video-recordings. What the public sees in any case is just a smidgeon of what actually exists in most major case files.
I disagree that there is no competent and reliable evidence of insurrection from the events that occurred before, during, and after January 6th. I am not saying that the quantum of evidence would be enough for a prosecutor to prove such a charge in a particular defendant’s case. That is not my right, nor is it your right. I am saying that it is a prosecutor’s job to make that determination prior to filing such a charge and it is either a judge’s or jury’s job to find whether insurrection occurred in a criminal setting. In a civil setting, under a lesser standard of proof, an insurrection can be proved by a preponderance of the evidence and a judge or jury can make that finding.
Let’s think this through, as a summation of the above comment. A prosecutor has access to all evidence that was preserved from before, during and after that date. He or she is not limited solely to the use of evidence collected by a particular FBI agent who was investigating a particular suspect. If a prosecutor obtains a guilty plea to a negotiated charge and recommends a negotiated sentence, then that accumulation of evidence in the case file is seldom presented in full during a sentencing hearing. The plea might be to a lesser charge. The public seldom sees the prosecutor’s full file in a case that resolves with a plea.
I don’t remember how many decades ago that I read Leon Jaworski’s account of his role as a special Watergate prosecutor, in his The Right and The Power, but I have occasionally reread his account of the proper role of plea bargaining, as follows:
“My plea bargaining with Colson brought on another spate of criticism of the practice. I issued a brief statement in an interview: ‘Permitting an accused to plead to charges that the Special Prosecutor concludes, after full consideration of all relevant factors, are commensurate with the gravity of the offense will continue to be the policy of the office. This has been the practice since the time the office was established.
“I believed I was standing on solid ground. The American Bar Association, …, had released a volume containing its approved Standards of Criminal Justice. … An Advisory Committee on Criminal Trials addressed itself to the practice of plea bargaining. At one point the Committee’s report said:
“‘Trials, however, by no means represent the major activity of a prosecutor in the administration of criminal justice in the United States. The vast majority of criminal cases are disposed of without trial as the result of guilty pleas and, if the system as a whole is working properly, this is as it should be. The process of plea discussion serves important social interests and is one of the most important social functions of both prosecutors and defense counsel.
“Properly conducted, plea discussion may well produce a result approximating closely, but informally and more swiftly, the result which ought to ensue from a trial, while avoiding most of the undesirable aspects of that ordeal. Disposition without trial of course provides substantial cost saving to the accused and to the public in terms of the time of lawyers and all other participants. Although the cost saving alone would not be an appropriate justification for abridging the legal process if it were achieved at the expense of fairness or equal justice, from the standpoint of objectives of the criminal law, a fair and just disposition of a case without trial is obviously preferable to its disposition by trial, as is true in civil litigation. The speed and certainty of a disposition by plea promotes deterrence, a basic goal of criminal justice.”
As my father used to say: If the truth comes out in trial, it’s a miracle.”
Skibum says
Ray, you have given a very well reasoned response to Ed’s request to you. The only part of your reply that I am having difficulty with is when you say “we weren’t there that day, so we really don’t know what happened.” No, we weren’t there in person, but we DO know what happened because all of America was just as good as right there, seeing the insurrection play out moment by moment on live TV from both outside and inside of the U.S. Capitol. If, as you said, we don’t know what happened because we were not there that day, wouldn’t that give Trump an automatic defense because he too, like all of America, was not actually there at the Capitol that day but he was reportedly watching it play out on live TV in addition to getting briefed by his aides. Enrique Tarrio, a former leader of the “Proud Boys” wasn’t there either – he was holed up in a hotel room in D.C. keeping in touch with the mob via cell phone, yet he was convicted and sentenced to 22 years in federal prison for his participation from afar. He probably tried and failed with the defense that he was not there at the Capitol that day and did not know what happened, so you can see how far that got him. I’m sure that will be one of many of Trump’s defenses also, and I believe it is fair to say that although he wasn’t there, he surely knew what was happening, and we could watch with our own eyes and see what was happening as it played out for all to see.
Ray W. says
Thank you, Skibum. Yours are important points.
Skibum’s comment is why I use terms and phrases like “perhaps”, “it might be”, or “this suggests.” This is why I ask questions and pose ideas. I try to avoid certainties in my comments. I try to rely on outside sources for my arguments. For example, another of my recent comments, this one about federal deficits, contains data gleaned for a particular site. I went to several sites, but each one had different data. One explained that it drew its data from fiscal years, which begin on October 1 of each year. Another used data starting from January 1. Another used data starting with the first day of each presidential term. Since spending and tax revenue changes every month, sometimes significantly, using different reference dates gives different figures for each presidential term. Sometimes, the numbers seemed off to me, but I named the site and hope that others will come up with their own conclusions.
For over 30 years I worked in a system where judges and juries told me whether my arguments were right or wrong. I always knew that I did not decide legal truth, the type of truth that brings finality to disputes, but I had the honor and privilege as an officer of the court to present arguments for final consideration.
I have my opinions about what happened, and I do not disagree with your opinions, but I live in a world that relies on the rule of law. If I abandon that world, I become no better than JimboXYZ or Dennis C. Rathsam, who abuse reason with regularity.
I will await the conclusion of the various legal battles shaping up all over the country. I may disagree with some, many, or all of them, but I will respect them. If, under a civil standard of a preponderance of the evidence, a trial judge in Colorado admits evidence into the hearing record and makes factual findings that are upheld when the appellate process reaches its conclusion, and the appellate court upholds the factual finding that our former president engaged in insurrection, I will begin to use the term with finality. Others, who disrespect our liberal democratic Constitutional republic, will never accept the findings of the Colorado trial court. They are the ones who are a danger to us all. They are the “pestilential” partisan members of faction that James Madison warned us to avoid.
Ray W. says
According to a Times article, updated today, 16 states do not currently have a challenge filed against Trump appearing on the ballot. Of the 34 that do, two have disqualified Trump, 14 have been dismissed or withdrawn, and 18 are pending.
There remains much legal space available for odd or previously not reported legal theories, pro or con.
Sherry says
Hello Ray,
An attorney for former President Trump, Alina Habba, said late Thursday (on FOX) that she has faith in the Supreme Court and believes that Justice Brett Kavanaugh will “step up” in Trump’s ballot cases in Maine and Colorado.
“I think it should be a slam dunk in the Supreme Court. I have faith in them,” Habba told Sean Hannity on Fox News. “You know, people like Kavanaugh, who the president fought for, who the President went through how to get into place, he’ll step up.”
If trump’s attorney can be so bold, we should all be really concerned about this very partisan Supreme Court!
Skibum says
18 U.S. Code § 2383 | Rebellion or Insurrection: The term “insurrection” is generally described as a violent uprising or organized resistance against the government or its regulations.
There is nothing in the law saying the actions of those involved had to succeed in order for it to be an insurrection. Trump sent that mob to the U.S. Capitol. Even before they marched en masse to the capitol he had argued for the Secret Service to not put up security checkpoints with metal detectors to prevent weapons from being brought to where he was scheduled to give his speech, telling his advisors and secret service agents that those coming to hear him were his supporters and he was not worried about any of them using a weapon to hurt him. He was wanting to lead the mob to the capitol, and it was only because his protection detail refused to let him go to the capitol after his speech that he didn’t carry through with his plan. It was widely reported that he even lunged at the driver of his SUV when the secret service detail would not obey his order to take him to the capitol after the speech and instead drove him back to the White House. Then after the mob broke through the security cordons and into the U.S. Capitol, Trump reportedly watched the events unfold on live TV for at least 2 hours, refusing multiple pleas, even from his daughter Evanka, to go on TV and tell his supporters to leave the capitol and go home. If Trump’s behavior, his incendiary speech to rile up the mob, as well as his inaction to order in reinforcements including the National Guard to stop the violence, and then sitting idly by while the mob erected a gallows and chanted “HANG MIKE PENCE”, even remarking that his VP deserved to be hung for not following Trump’s request to not certify the election results the congressional session that was in progress, if all that is not participating in an insurrection against the government, then NOTHING could be classified as an insurrection against the government.
Sherry says
Thank you, Skibum, for pointing out that an insurrection need not be successful in order to be defined as such.
Certainly we should never forget the “violent” attempt to overthrow our government during the insurrection of Jan 6, 2021! Law enforcement officers died, and many were injured by a mob of armed trump supporters intent on keeping him in office. If those officers were not successful in fending off that dangerous mob, there is the distinct possibility that the Vice President/members of Congress could have been murdered or at least injured.
As you said, if the horrific actions of the mob on Jan. 6th should not be defined as an insurrection, “then NOTHING could be classified as an insurrection against the government.”
Are we a nation of laws, or of mob rule?????
Laurel says
Confederates fired the first shot on the Union’s Fort Sumter in April 1861, starting the Civil War. President Lincoln described the situation as an “insurrection.” Though Lincoln later changed the term to a “rebellion,” it was still an attempt to overthrow the Union, which was the U.S. Government.
On January 6th, President Trump pushed his followers to the Capital, which was breached in an attempt to stop the rightful election of Joe Biden. Weapons were present; Lives were lost. It was no less an insurrection because Trump’s followers were not successful.
The Confederate Rebels did not succeed, either.
DaleL says
The US House and Senate, in majority votes, during Mr. Trump’s second impeachment, found that the events of January 6th were an insurrection. The Senate did not convict Mr. Trump by the necessary 2/3rds vote to have him barred from future office pursuant with the impeachment clause. However, a number of senators voted not to convict based on their belief that he was already barred based on the 14th Amendment.
The US House and Senate, in majority votes, to honor the Capitol police, found that January 6th was an insurrection.
Merriam-Webster: Insurrection = “an act or instance of revolting against civil authority or an established government”. What happened was the definition of an insurrection.
Had the mob targeted retail stores and looted them, (The aftermath of some BLM demonstrations.), that would not have been an insurrection. An insurrection is when the mob targets the government. In this case specifically, the US Constitution with respect to the counting of Electoral Votes by Congress.
Rebellion against the US Constitution and giving aid and comfort to enemies of the US Constitution are also disqualifying actions.
Think also of the future. Are presidential elections in the future to be decided by opposing mobs at the Capitol?
Barbara says
Well written albeit frightening article. It is beyond comprehension that someone could conclude whether legally or with common sense that the most powerful position as president is exempt from the amendment. Let the people decide with their vote??!! The same gullible sheep that blindly followed this want-to-be dictator ending up in prison following the insurrection? No thank you, let’s follow the rule of law and constitution and save our democracy.
Greg says
They hate Trump so much that the courts pay no attention to the laws. Sad for America that even the courts are corrupt.
Laurel says
Greg: Untrue! “Donald Trump leaves the White House having appointed more than 200 judges to the federal bench, including nearly as many powerful federal appeals court judges in four years as Barack Obama appointed in eight.” – Pew Research Center.
On the U.S. Supreme Court, it is currently six conservatives to three progressives. Trump appointed three of the conservative judges. One, Thomas, appointed by Ronald Reagan, should recuse himself as his wife, Ginny Thomas, was involved in MAGA support of the insurrection.
So how you came up with your “hate” of Trump by the courts is misinformation. Try facts for a change.
Sherry says
Thanks Laurel. . . for pointing out the actual facts! Right On!
DaleL says
“But it shouldn’t be that hard to conclude that Trump engaged in insurrection — we all watched it happen with our own eyes.”
Amen to that. Mr. Trump and his accomplices would have us not believe our own eyes. Speaker of the House, Mike Johnson even instructed that the video footage released by the House be selectively blurred to protect the guilty!
Section 3 specifically names Senator, Representative, elector of President, and elector of Vice-President. It does not specifically name the office of President. However, Senators and Representative are members of Congress, which is a separate branch of government. Similarly, Presidential electors are members of the transitory Electoral College. The office of President is without doubt and office in the government of the United States.
The oath taken by the President does not include “support” as in the 14th Amendment, but it is even more demanding as it requires the President to “Protect” and “Defend” the US Constitution.
Other individuals have been disqualified, based on Section 3, from office without being convicted of a crime. It is the actions of the individual which disqualify them. Also, Section 3 specifically applies to insurrection or rebellion against the US Constitution and to giving aid and comfort to enemies of the US Constitution.
The only rational issue is the question as to when did Mr. Trump become disqualified? If his actions and inaction on January 6th are what disqualify him from the office of President, then logically he removed himself from the office on January 6th. The pardons and commutations that he issued after that date should have no validity as they came from an ordinary citizen. Mike Pence, by ordering in the National Guard, did so as the acting President.
Alternatively, suppose Mr. Trump is not disqualified. Does that mean that Kamala Harris can, as the Vice President presiding over the electoral vote count, reject electoral votes for Trump and accept alternative votes for Biden? Shall we have in the future warring mobs at the Capitol each election year? If what Mr. Trump did was acceptable, then it should be equally acceptable for his opponents to do the same.
Sherry says
Thank you, Dale L, for your logical and rational assessment!
Also, for pointing out the possibility that trump legally became “disqualified” to hold the office of President from Jan. 6, 2021 – Jan. 19, 2021. . . and, that the pardons and other actions he took during that period were unlawful. I had not considered that circumstance. Hopefully the courts will.
I especially appreciate your last paragraph where you remind us all that if trump gets away with inciting a revolution against our government, that precedent could destroy our democracy in favor of mob rule/dictatorship.
Laurel says
Yes, and what is the difference in blurring the faces and wearing white sheets over the heads of terrorists?
DaleL says
I like that analogy. It goes along with the Confederate battle flag that was paraded through the Capitol.
There are now some efforts to bar US Representatives from the ballot based on the 14th Amendment. Representative Scott Perry of Pennsylvania is one of those. He is reported to have had his phone seized in the summer of 2022 by the FBI.
JW says
The US Constitution and the rest of the our legal system was designed to keep layers busy, now 1.3 million of them: one could call this the legal industrial complex. It is mostly process and interpretation of precedents, much less substance. On top of that there is the political aspect: our two party system allows only two choices, or sometimes let’s do nothing.
And our founding fathers used the British system (which does not have a written constitution) as a basis.
We did not want a King but that may have to be reinterpreted in November as well. Maybe a theocracy? Our democracy exists in name only and the American experiment is ongoing!
Cody says
You’re a liar, author.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
That’s in black and white.
DaleL says
This was NOT a criminal prosecution or trial.
This was a decision of an appeal from a previous civil trial.
The civil trial was conducted last year in November. Mr. Trump and the Colorado Republican party were afforded their due process rights, the right to confront witnesses, the right to present testimony, and the right to present witnesses. As it was a civil trial, having to do with the law, there was no jury.
Sherry says
@cody. . . Here are the actual words from section 3 of the 14th amendment to our constitution:
Section 3 of the Civil War-era 14th Amendment says: “No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … 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.”
Even if someone is found to be ineligible to serve, the amendment says Congress can overturn that decision with a two-thirds majority.
There is NO mention of any kind of trial being necessary to determine the “eligibility” of a person “engaged” in insurrection, or given aid and comfort to the enemies thereof. Yet, as Dale L pointed out, there was “due process” afforded during the CIVIL trial in Colorado in November.
Let’s stick to the actual facts, instead of calling authors liars using some FOX/Newsmax ridiculous BS.
Thanks!
Ray W. says
The author, in some way, whether by intent, oversight, lack of research, or other reason, left out perhaps one of the more important issues driving the outcome of the manifold lawsuits involving Clause 3 of the 14th Amendment, i.e., standing.
What is standing? In its most simplistic form, if Ed is struck by a drunk driver, he, being the injured party, has standing to seek a remedy from the appropriate court. I cannot seek a remedy in court for his injuries unless I can show that I have the requisite standing to do so. This is an example of a condition precedent.
This raises the question of exactly who is filing the claims seeking disqualification of former President Trump from the primary ballots in the several states?
I ended up at SCOTUSblog, a site I visited from time to time prior to my retirement from the practice of law. The author pointed out many interesting facts and issues that have not yet seen the light of day on FlaglerLive.
First, the idea of challenging the placement of former President Trump on a primary ballot, using Clause 3 of the 14th Amendment, seems to have been pioneered by two conservative law professors at U. Penn’s law school. An as yet unpublished draft of a law journal opinion piece they authored set out the argument; the rough draft was released last August.
Since former President Trump is seeking placement on the November national ticket as the Republican candidate, the statewide Republican Party office in each of the 50 states is intent on placing him on the primary statewide ballot as a Republican candidate. Not one is trying to place him on the primary ballot as a Democratic candidate. Therefore, only Republicans or those not registered by party have standing to challenge his placement on the Republican statewide ticket. Democrats lack standing to challenge his placement.
The SCOTUSblog author researched the issue.
In Colorado, a mix of Republican and non-affiliated voters challenged his placement. Not a single registered Democrat is named as party to the action.
In Maine, a bipartisan group of voters filed the suit, but it was not a lawsuit; it was a request of the Secretary of State to issue an administrative opinion, in accord with Maine law.
I didn’t recognize the name, but a little-known Republican presidential candidate, who lists his residence as Texas, is the one who filed cases in a number of states challenging placement on each state’s Republican primary ballot. A New Hampshire judge found that he lacked standing in New Hampshire because he wasn’t a New Hampshire resident. The same outcome occurred in Arizona, Rhode Island and W. Virginia.
In Minnesota, Michigan and Oregon, judges denied the suits, ruling that the issue wasn’t ripe for resolution. The denials were without prejudice to go back to court when the case involved the national election. If former President Trump wins the primary in any one of those three states, the plaintiffs have the right to revisit the issue, as only the national election is actually for the office of the presidency. A primary is not an election for the office of the presidency; it is for placement on that state’s November ballot as the Republican candidate.