Last Friday, a Colorado state judge ruled that the Fourteenth Amendment disqualification provision does not apply to former presidents, allowing Donald Trump to remain on the primary ballot for the Colorado Presidential primary. The court's decision is a mixed bag for Trump, however, because Judge Sarah Wallace also made extensive factual determinations that Donald Trump engaged in insurrection through his efforts to obstruct the transfer of power to Joseph Biden, including inciting and failing to shut down the January 6 riot at the Capitol.
Unlike the Minnesota and Michigan state court cases that -- based solely on state law interpretations -- declined to address the Fourteenth Amendment challenge to Donald Trump's ballot eligibility, the Colorado decision squarely addressed the Fourteenth Amendment issues. By doing so, the likelihood of eventual review by the U.S. Supreme Court increases substantially.
Under Section 3 of the Fourteenth Amendment, if an "officer of the United States" engaged in insurrection against the Constitution (having taken an oath to support the Constitution), the official is disqualified from holding future federal office. Judge Wallace concluded tonight that "officer of the United States" does not include a former president or vice president and thus the Fourteenth Amendment prohibition does not require Donald Trump's exclusion from the primary ballot. The Fourteenth Amendment explicitly disqualifies members of Congress, state executive and legislative officials, and "officers of the United States" from holding future federal office if they engaged in insurrection, but the language of the Amendment does not explicitly cover presidents and vice presidents.
Accordingly, Judge Wallace ruled that the Secretary of State cannot exclude Donald Trump from the primary ballot based on voter challenges under the Fourteenth Amendment.
But Judge Wallace made extensive factual findings, relying in part on the Congressional report on the January 6 Capitol attack but also on testimony and documentary evidence. Based on this record, she determined that Donald Trump did indeed engage in insurrection against the Constitution. The actions of Donald Trump and his team of lawyers and advisors to circumvent the transfer of power under the Twelfth Amendment justified, in the court's view, a finding that Donald Trump engaged in insurrection. If the Fourteenth Amendment applied to presidents as "officers of the United States," Trump would be disqualified.
Although Judge Wallace concluded the Fourteenth Amendment, as a legal matter, did not apply to former President Trump, her ruling on this issue will be reviewed on appeal. If an appellate court -- ultimately the U.S. Supreme Court -- reaches a different legal conclusion, Trump's eligibility to hold office would be in jeopardy because Judge Wallace has already determined that Donald Trump, as a factual finding, engaged in insurrection against the Constitution.
Importantly, an appellate court grants no deference to the legal conclusions of a trial court. Regardless of the trial court's legal analysis, an appellate court has complete discretion to reach the opposite legal conclusion. By contrast, factual findings, like Judge Wallace's insurrection determination, are granted deference by appellate courts because the trial judges are best positioned to evaluate the credibility of evidence and testimony offered at trial.
Donald Trump's lawyers are likely upset with Judge Wallace's factual finding of insurrection. Logically, if the Fourteenth Amendment disqualification provision does not apply to Trump, the court should have rejected the case immediately without making any factual findings on the insurrection question. This is purely speculation, but Judge Wallace likely recognizes that the legal issues in the case will inevitably go up on appeal regardless of her legal conclusions. Factual findings, however, are the primary responsibility of trial judges and by making a factual finding of insurrection, she puts Donald Trump's presidential eligibility in immediate jeopardy if an appellate court makes the opposite legal conclusion that the Fourteenth Amendment applies to former President Trump. As Judge Wallace stated in tonight's opinion, there are persuasive arguments on both sides of the legal issue and she just teed it up for appellate review.
We expect the case to move quickly to the Colorado Supreme Court. It is not impossible that the State Supreme Court could follow the approach of the Minnesota and Michigan courts and dismiss the case as inappropriate under state law, but Judge Wallace's Fourteenth Amendment analysis and decision set the stage for review of the Trump disqualification issue before the State Supreme Court and the U.S. Supreme Court. The Colorado Secretary of State has indicated that she needs complete judicial resolution of these issues on an expedited basis if the ballot is going to be printed in time for the March 5 primary.
Over the weekend, headline news reports pronounced Donald Trump has defeated yet another attempt to keep him off a state primary ballot. But the court's finding that Trump's conduct already meets the definition of "insurrection," sets up a monumental legal battle that will probably force the U.S. Supreme Court to make the final, absolute call.
