The Trump Ballot Qualification Trial

The Insurrection Clause And Colorado Trial Explained

Today is the fourth day of five in the Trump ballot qualification trial in Denver, Colorado's state court of general jurisdiction. It is a bench trial mandated by Colorado's state election laws and brought by political action group CREW to determine if former President Trump is ineligible to run for public office as a result of the disqualification set forth in Section 3 of the 14th Amendment to the U.S. Constitution, as a result of his efforts, including but not limited to the January 6, 2021 Capitol Riot, to overturn the 2020 Presidential election that he lost.

Factually, the CREW case leans heavily on and parrots the final report of the United States House Select Committee on the January 6 Attack for its evidentiary case.

The Colorado case is one of many cases challenging Trump's qualification to serve as President under the insurrection clause. 

But, the Colorado ballot access case is important because it is the first of these cases to be tried on the merits (although parallel ballot access litigation in Minnesota is also very advanced).

 

The relevant language from the U.S. Constitution, also known as the Insurrection Clause, states that:

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.

One purely legal question is whether the clause applies to the office of President of the United States. The court has rightly rejected the dubious argument that the Presidency is not included in the statement that: "No person shall be a . . . elector of President and Vice President, or hold any office, civil or military, under the United States" in Section 3.

Another purely legal question is whether the President is "an officer of the United States" (since former President Trump took the oath of office to support the Constitution of the United States only after he was elected President). The judge has rightly rejected the dubious argument that the President is not an officer of the United States.

It is undisputed that Congress has not removed this disability if it does apply to former President Trump.

The Court has also rejected challenges to the standing of the Petitioners in the case, the ripeness of the challenge, given that Trump hasn't been elected yet, and has rejected the claim that Section 3 of the 14th Amendment may not be enforced in a civil lawsuit today because no authorizing federal legislation to allow that is in force. The judge has concluded that the private cause of action allowed by Colorado's election laws are sufficient.

Numerous historical precedents have held that this determination may be made in a civil lawsuit and does not require a criminal conviction, contrary to Trump's argument that a criminal conviction is required.

So, the core mixed question of fact and law before the Court in its five day evidentiary bench trial is whether Trump has engaged in insurrection or rebellion against the Constitution of the United States, or has given aid or comfort to the enemies the Constitution of the United States.

This requires the Court to both determine whether Trump took the actions that the Petitioners allege that he did, and to determine if the actions that the Court finds that Trump did take amount to "insurrection or rebellion against the Constitution of the United States", or to giving "aid or comfort to the enemies the Constitution of the United States."

The Petitioners note that historically, people have been disqualified from office under the insurrection clause for acts far less weighty than Trump's. 

Trump and the Colorado Republican Party have argued that Socialist Eugene Debs was allowed to run for President while in prison. In particular, "Debs was allowed to run for president despite serving time in prison for sedition for publicly discouraging military recruitment during World War I." Of course, in this 1920 election campaign, Debs was a third-party candidate with little or no chance of winning the race who received just 3.41% of the vote. Debs was sentenced, on September 18, 1918, to ten years in prison and was also disenfranchised for life. His conviction was affirmed by the U.S. Supreme Court in 1919, but his sentence was later commuted by President Harding on December 23, 1921, although Debs was not pardoned, after Congress repealed the statutes under which Debs was convicted earlier that year. It isn't clear to me, however, that his disenfranchisement, or the insurrection clause argument, was ever raised in that case to oppose his eligibility to run for President. 

In contrast, Donald Trump has previously served as President for four years, and is the clear front runner in the 2024 Republican Presidential Primary. Trump remains the far and away front runner in the GOP primary, despite the fact that he is currently facing four felony criminal cases (a criminal business fraud case in New York State, a classified documents case in a Miami, Florida federal court, a D.C. based case arising out of the January 6 riot, and a Georgia state court election interference case in which several co-defendants from his inner circle have already pleaded guilty), having already partially lost a $250 million civil fraud case in New York State on a motion for summary judgment the balance of which is still being tried in a New York State court, and having recently lost a defamation and rape case in which he was found to have sexually assaulted a woman and then lied about not having done it. He also faces other civil lawsuits (e.g. a lawsuit as a co-conspirator in a personal injury case of a law enforcement officer injured in the January 6 riot) and other ballot qualification lawsuits which are likely to be decided before the Presidential election is held in November of 2024, just about a year from now.

A Plausible Worst Case Outcome For Trump

From what I have seen so far, it seems more likely than not that District Court Judge Sarah B. Wallace will find that Trump is disqualified from serving as President under this constitutional provision commonly known as the insurrection clause. The Denver Post editorial board thinks that she should find that Trump is disqualified from running for President on this ground.

It also seems likely that the Colorado Supreme Court is likely to affirm Wallace's ruling, if that is the one she makes, on appeal. Then, the question is whether the U.S. Supreme Court would take up the case.

If the U.S. Supreme Court denies certiorari after the this case has excluded Trump from the ballot (which seems unlikely), or if it does take up the case and affirms a ruling of Judge Wallace that Trump is not qualified to serve as President under the insurrection clause (despite its 6-3 conservative supermajority), then Trump's Presidential race is over. So far, Trump's record in the U.S. Supreme Court has been mixed, despite his role in appointing more than one sitting U.S. Supreme Court justice.

This is because Trump is a party actively litigating this case, and the legal doctrine of collateral estoppel says that the resolution any legal issue finally determined in an actively litigated lawsuit against someone bind the person the ruling was made against in all future civil lawsuits. Collateral estoppel is one sided because it is party driven. It binds Trump when he was a litigant in a previous case, but it does not bind new Plaintiffs in other cases, who weren't litigants in previous cases.

So, if Trump loses the Colorado ballot access case (or another other ballot access case to which he is a party brought by different petitioners like a parallel case in Minnesota), after all appeals in the case are exhausted, he automatically loses every other ballot qualification case that is brought against him in every other U.S. state.

What Happens If Trump Can't Run For President?

If Trump is not on the ballot, the 2024 Republican Presidential Primary would be turned upside down, and the prospects of the Republican candidate emerging from the primary in a general election matchup against incumbent Democrat Joe Biden would have to be reevaluated from scratch.

Trump and Biden have been in a statistical dead heat in 2024 Presidential general election polling for months. But many Republicans might not vote at all if Trump wasn't on the ballot. On the other hand, a Republican candidate other than Trump wouldn't be nearly as tarnished by Trump's bad character and criminal prosecutions with moderate swing voters who dislike Biden but see him as the lesser of two evils.

Given the good substantive economic news and news on a variety of other barometers of national well being, and the evidence that shows that when incumbents run for re-election that the race is usually a referendum on the incumbent's performance, it isn't entirely clear while Biden is polling so very poorly. But that is the reality, and even many Democrats, myself included, don't really love him as the Democratic party's standard bearer, even though he is clearly better than any of the Republican challengers that he might face, and is clearly better than any of the stronger third-party candidates.

More darkly, there is good reason to fear the removing Trump from the ballot could drive far more efforts from the far right to use violent political tactics than they already have so far, after seeing their efforts to gain power through the electoral process thwarted.