Colorado Supreme Court removed Donald Trump from the primary ballot

Trapper Gus wrote:https://www.dailykos.com/stories/2023/12/19/2212710/-Colorado-Supreme-Court-bars-Trump-from-presidency-over-insurrection-clause

The SCOTUS will rule it only applies to those convicted of insurrection, and later, in another case they will rule that January 6th was not an insurrection.

BET

sεяεηιτλ wrote:

Trapper Gus wrote:https://www.dailykos.com/stories/2023/12/19/2212710/-Colorado-Supreme-Court-bars-Trump-from-presidency-over-insurrection-clause

The SCOTUS will rule it only applies to those convicted of insurrection, and later, in another case they will rule that January 6th was not an insurrection.

BET

And would the constitution back up that ruling?

Trapper Gus wrote:

sεяεηιτλ wrote:

And would the constitution back up that ruling?

The law is a cruel.

The court & the lawyers should go back to the debate by Congress for the 14th, and then any cases in which the 14th was evoked.

The press is saying the court never has ruled on this question.

sεяεηιτλ wrote:

Trapper Gus wrote:

The law is a cruel.

The court & the lawyers should go back to the debate by Congress for the 14th, and then any cases in which the 14th was evoked.

The press is saying the court never has ruled on this question.

Not sure what you mean by the law being a cruel.

sεяεηιτλ wrote:the problem with the supremes ruling on this now is that it's going to set the bar for insurrection incredibly high, so high that it will never be achieved. It's going to require some kind of action from our legislature which just won't happen when at any given time, at least half of them will never in a million years acknowledge anyone prominent on their side engaged in insurrection. The problem is, this WAS insurrection. Anybody that watched it unfold on Jan 6 saw what this was. There was a constant background of angry visceral screaming. There were threats of violence, and the mob broke into the building to stop the proceedings. That's an insurrection. And the president watched as it unfolded, encouraged it weeks ahead of time up to minutes ahead of time. And did nothing to stop it until it was all but over on its own. It was a small insurrection, by any definition. And so to stop it, the supreme court is going to have to rationalize what was indeed and clearly was an insurrection into something it clearly was not. And thus they endanger us all from future insurrections, some that may be far more successful.

sεяεηιτλ wrote:

Trapper Gus wrote:https://www.dailykos.com/stories/2023/12/19/2212710/-Colorado-Supreme-Court-bars-Trump-from-presidency-over-insurrection-clause

The SCOTUS will rule it only applies to those convicted of insurrection, and later, in another case they will rule that January 6th was not an insurrection.

BET

And would the constitution back up that ruling?

Zurn wrote:I can't imaging that tSCOTUS would allow a candidate to be banned from the ballot for being accused of insurrection..  

sεяεηιτλ wrote:the problem with the supremes ruling on this now is that it's going to set the bar for insurrection incredibly high

The problem is, this WAS insurrection.  

Zurn wrote:

sεяεηιτλ wrote:the problem with the supremes ruling on this now is that it's going to set the bar for insurrection incredibly high

As it should be.  We are in big trouble if all it takes is an accusation to keep someone off the ballot.

 

The problem is, this WAS insurrection.  

In your opinion.  Interesting that although is seems so obvious to you, nobody has been actually convicted of insurrection because of the events of Jan 6.  

Surn wrote:

sεяεηιτλ wrote:the problem with the supremes ruling on this now is that it's going to set the bar for insurrection incredibly high

As it should be.  We are in big trouble if all it takes is an accusation to keep someone off the ballot.

 

The problem is, this WAS insurrection.  

In your opinion.  Interesting that although is seems so obvious to you, nobody has been actually convicted of insurrection because of the events of Jan 6.  

Zurn wrote:

sεяεηιτλ wrote:the problem with the supremes ruling on this now is that it's going to set the bar for insurrection incredibly high

As it should be.  We are in big trouble if all it takes is an accusation to keep someone off the ballot.

 

The problem is, this WAS insurrection.  

In your opinion.  Interesting that although is seems so obvious to you, nobody has been actually convicted of insurrection because of the events of Jan 6.  

Travis of the Cosmos wrote:

Zurn wrote:

As it should be.  We are in big trouble if all it takes is an accusation to keep someone off the ballot.

 


In your opinion.  Interesting that although is seems so obvious to you, nobody has been actually convicted of insurrection because of the events of Jan 6.  

Jefferson Davis and Robert e Lee were never convicted of a crime but the people that wrote this amendment at the time thought it applied to them. 

But come on guys did you just wake up from a 7 year long coma? Nothing is going to happen.

Trapper Gus wrote:

Zurn wrote:

As it should be.  We are in big trouble if all it takes is an accusation to keep someone off the ballot.

 


In your opinion.  Interesting that although is seems so obvious to you, nobody has been actually convicted of insurrection because of the events of Jan 6.  

Typical right wing legalistic talking point, which is wrong, BTW, as two courts have ruled that Donald Trump took part in an insurrection.

kingstonlake wrote:

Travis of the Cosmos wrote:
Jefferson Davis and Robert e Lee were never convicted of a crime but the people that wrote this amendment at the time thought it applied to them. 

But come on guys did you just wake up from a 7 year long coma? Nothing is going to happen.

Even if Trump were to be convicted in any of these cases there’s no chance he spends a day in prison. None. You’ll never see a former president jailed.

Conservative retired judge Michael Luttig was a guest on MSNBC last night. Based on the unassailable arguments in the written opinion, he predicted that SCOTUS will uphold the CO decision.

Was January 6th An Insurrection?

The Constitution does not define insurrection and courts have struggled to find a uniform definition. Trump’s attorneys argue January 6 was a mere riot, not an insurrection. The trial court defined an insurrection as:

“(1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.”

While doing nothing to repudiate that definition the Colorado Supreme Court took a slightly different approach. The majority agreed with Trump’s characterization that an insurrection is more than a riot, but less than a full rebellion, falling on a spectrum between those two. The Colorado Supreme Court found that it need not precisely define insurrection to conclude that, “public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country,” easily qualifies as an insurrection.

The court found that substantial evidence supported that the use of force on January 6th was concerted and that the mob acted with a unity of purpose, “seeking to inflict violence against members of Congress and Vice President Pence . . . upon breaching the Capitol, the mob immediately pursued its intended target — the certification of the presidential election — and reached the House and Senate chambers within minutes of entering the building.” The Colorado Supreme Court found there was substantial evidence “that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment.”

The Colorado Supreme Court concluded, “under any viable definition, this constituted an insurrection.”

Did Trump Engage In The Insurrection

The court found little precedent for what Section 3 means by “engaged in” an insurrection. For precedent the court relied on cases where it was determined someone “engaged in” treason. The court cited an 1807 treason decision by Chief Justice Marshall where:

“if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

The court cited an 1851 jury charge:

“It is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories.”

The Colorado Supreme Court agreed with the trial court that:

“engaged in” requires “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.”

The overt act part is important. By that, Trump’s highly criticized failure to respond to quell the violence does not rise to engaging in the insurrection. Trump had to have an active, and not passive role in what occurred.

The Colorado Supreme Court found there was substantial evidence Trump had that active role. He pushed false claims that the election was stolen. He actively refused to commit to a peaceful transfer of power. He pressured Vice President Pence to overturn the election results. He intentionally targeted state election officials, such as Brad Raffensperger, for harassment and intimidation from his supporters. He organized “Stop The Steal” rallies where his inflammatory language fired up the crowds. When one of those rallies turned violent, Trump justified it. Trump summoned the crowd to be there on the very day of the electoral college certification with his “be wild” tweet on December 19th. A tweet violence prone supporters like the Proud Boys and the Oath Keepers viewed as a “call to arms.”

Trump knew his own law enforcement agencies were concerned with increasing risks of violence on January 6th. Even so, on that day he tweeted that the election could be saved if Mike Pence had the courage to act. In the midst of the violence he tweeted that Mike Pence was a coward, effectively directing the mob against Pence.

Aware of the increasing risks of violence Trump spoke at the Ellipse, where he encouraged the crowd to “fight like Hell.” He told them that “this is a matter of national security,” and that when there is fraud “you’re allowed to go by very different rules.” He colluded with rally organizers to falsely tell law enforcement there would be no march on the Capitol while the rally organizers fully knew Trump intended to tell the mob to do exactly that.

There is the indisputable fact that the mob responded to that speech by marching on the Capitol. Within an hour of his speech the mob was breaching the Capitol and the Vice President and members of Congress were fleeing for their lives.

When Trump finally told the mob to go home, he praised them. That evening he praised them again as “great patriots,” suggested that their actions were justified and that Congress got what it deserved.

Based on such undisputed evidence, and more, the Colorado Supreme Court concluded:

“President Trump engaged in insurrection . . . the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power . . . President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection . . . Moreover, the record amply demonstrates that President Trump fully intended to — and did — aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.”

Was Trump’s Speech Protected By The First Amendment

Trump argued that all the speech cited against him in the above discussions was Constitutionally protected free speech. The Colorado Supreme Court noted this question is governed by the seminal 1969 United States Supreme Court case, Bradenburg v. Ohio. This decision, on the issue of inciting violence, sets a high bar for speech to not be protected by the First Amendment. To not be protected the speech must:

(1) explicitly or implicitly encouraged the use of violence or lawless action;

(2) the speaker must intend that the speech induce violence;

(3) imminent violence must be the likely result of the speech.

Unless all three of these elements are present a speech appearing to incite violence remains protected by the First Amendment. The speech at issue in the Brandenberg case was racist and incendiary in tone. The defendant was a Klan leader, who while uttering racist slurs, urged a march on the Capitol. Notably, the speech was given in Ohio, not at the Capitol, and no such march manifested. The Supreme Court found that “abstract advocacy” of violence was insufficient unless paired with the elements above.

The dispute centered on the second element, where it must be shown that Trump intended for his speech to result in violence. Trump argued that his Ellipse speech should be examined only within its own context, and not the greater context of his actions that included a history of supporting violence.

The Colorado Supreme Court disagreed. “When assessing whether someone means to threaten another with unlawful violence, we sometimes need to consider more than the behavior exhibited on one occasion.” Thus, the Colorado Supreme Court agreed that it was appropriate for the trial court to consider Trump’s “history of courting extremists and endorsing political violence as legitimate and proper, as well as his efforts to undermine the legitimacy of the 2020 election results and hinder the certification of the Electoral College results in Congress.”

The Colorado Supreme Court recounted the long history of Trump endorsing violence at his rallies and Trump’s speech resulting in threats of violence against election officials. The court noted that one such official, Garbriel Sterling of Georgia pleaded with Trump “‘stop inspiring people to commit potential acts of violence’ or ‘someone’s going to get killed.’”

All the incendiary language of Trump’s Ellipse speech was cited again. His calls to “fight like Hell,” his claim the crowd could go “by very different rules,” and more that was understood by the crowd to be a call to arms. The Colorado Supreme Court noted that the trial court was not the first to reach this conclusion. It cited the federal court for the District of Columbia which in Thompson v. Trump held that Trump:

“invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building . . . where those very politicians were at work to certify an election that he had lost.”

Of course Trump supporters always focus on the one brief moment in Trump’s speech where he told them, “to peacefully and patriotically make your voices heard.” The Colorado Supreme Court agreed with trial court that this “isolated reference” could not inoculate Trump against the nearly hour long incendiary language that followed it. The court deemed that isolated reference “insincere” and existing only “to obfuscate and create plausible deniability.”

Trump knew of the potential for violence among his supporters and with that knowledge charged them up. Trump’s endorsement of that violence, during the violence, and after the violence, further establishes that Trump intended the violence to happen.

Does Section 3 of the 14th Amendment Apply To the Presidency?

Now we get to where the Colorado Supreme Court disagreed with trial court. Because whether the Section 3 applies to the Presidency is a pure question of law the Colorado Supreme Court reviewed this question de novo, affording no deference to the trial court’s decision.

The Colorado Supreme Court did not find it the trial court’s giving weight to the Presidency not being mentioned in Section 3 stating, “most likely that the Presidency is not specifically included because it is so evidently an “office.’” Senators and members of Congress are listed because their positions are not considered an office under the Constitution.

The Colorado Supreme Court notes that viewing the Presidency as an office is consistent with common usage of the words, but also the Constitution itself which refers “to the Presidency as an ‘Office’ twenty-five times.”

This includes the impeachment clause which disqualifies an impeached and removed individual from any office under the United States. Under the approach advanced by the trial court and Trump, “anyone impeached — including a President — could nonetheless go on to serve as President.” Indeed the only job an impeached and removed President could have in our government would be that of President. “This reading is nonsensical,” the court quite fairly declared pointing out that in the impeachment of both Clinton and Trump it was understood that removal from office would bar them from ever being President again.

The legislative history of debates over Section 3’s language is also persuasive. At least one Senator, Reverdy Johnson, read the provision as the trial court and Trump suggest and rose to raise that concern. He complained that, by not including the President, Section 3 did not go far enough as it would allow rebels into the highest office of the land. Senator Morrill replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” For Johnson the lightbulb went on. Satisfied he responded, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am.” As the Colorado Supreme Court put it:

This colloquy further supports the view that the drafters of this Amendment intended the phrase “any office” to be broadly inclusive, and certainly to include the Presidency.

As contemporaneous debate over the 14th Amendment proceeded many defended it because they firmly believed it would bar Jefferson Davis from the Presidency. When blanket amnesty, to remove the disability, was proposed in Congress, to allow former Confederates to again serve, many opposed on grounds it would allow the likes of Jefferson Davis into the Presidency. Accordingly to blanket amnesty was constrained so as to not include high ranking officials in the Confederacy.

The Colorado Supreme Court concluded:

“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three.”

The Colorado Supreme Court’s Conclusion

“we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”

Zurn wrote:

sεяεηιτλ wrote:the problem with the supremes ruling on this now is that it's going to set the bar for insurrection incredibly high

As it should be.  We are in big trouble if all it takes is an accusation to keep someone off the ballot.

 

The problem is, this WAS insurrection.  

In your opinion.  Interesting that although is seems so obvious to you, nobody has been actually convicted of insurrection because of the events of Jan 6.  

Trapper Gus wrote:

Conservative retired judge Michael Luttig was a guest on MSNBC last night. Based on the unassailable arguments in the written opinion, he predicted that SCOTUS will uphold the CO decision.

When I watched him during the Jan 6th hearings he struck me as someone who is very cautious in expressing a legal opinion.

edit - much more about the court rulings...

Was January 6th An Insurrection?

The Constitution does not define insurrection and courts have struggled to find a uniform definition. Trump’s attorneys argue January 6 was a mere riot, not an insurrection. The trial court defined an insurrection as:

“(1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.”

While doing nothing to repudiate that definition the Colorado Supreme Court took a slightly different approach. The majority agreed with Trump’s characterization that an insurrection is more than a riot, but less than a full rebellion, falling on a spectrum between those two. The Colorado Supreme Court found that it need not precisely define insurrection to conclude that, “public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country,” easily qualifies as an insurrection.

The court found that substantial evidence supported that the use of force on January 6th was concerted and that the mob acted with a unity of purpose, “seeking to inflict violence against members of Congress and Vice President Pence . . . upon breaching the Capitol, the mob immediately pursued its intended target — the certification of the presidential election — and reached the House and Senate chambers within minutes of entering the building.” The Colorado Supreme Court found there was substantial evidence “that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment.”

The Colorado Supreme Court concluded, “under any viable definition, this constituted an insurrection.”

Did Trump Engage In The Insurrection

The court found little precedent for what Section 3 means by “engaged in” an insurrection. For precedent the court relied on cases where it was determined someone “engaged in” treason. The court cited an 1807 treason decision by Chief Justice Marshall where:

“if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

The court cited an 1851 jury charge:

“It is not necessary to prove that the individual accused, was a direct, personal actor in the violence. If he was present, directing, aiding, abetting, counselling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Though he be absent at the time of its actual perpetration, yet if he directed the act, devised or knowingly furnished the means, for carrying it into effect, instigating others to perform it, he shares their guilt. In treason there are no accessories.”

The Colorado Supreme Court agreed with the trial court that:

“engaged in” requires “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.”

The overt act part is important. By that, Trump’s highly criticized failure to respond to quell the violence does not rise to engaging in the insurrection. Trump had to have an active, and not passive role in what occurred.

The Colorado Supreme Court found there was substantial evidence Trump had that active role. He pushed false claims that the election was stolen. He actively refused to commit to a peaceful transfer of power. He pressured Vice President Pence to overturn the election results. He intentionally targeted state election officials, such as Brad Raffensperger, for harassment and intimidation from his supporters. He organized “Stop The Steal” rallies where his inflammatory language fired up the crowds. When one of those rallies turned violent, Trump justified it. Trump summoned the crowd to be there on the very day of the electoral college certification with his “be wild” tweet on December 19th. A tweet violence prone supporters like the Proud Boys and the Oath Keepers viewed as a “call to arms.”

Trump knew his own law enforcement agencies were concerned with increasing risks of violence on January 6th. Even so, on that day he tweeted that the election could be saved if Mike Pence had the courage to act. In the midst of the violence he tweeted that Mike Pence was a coward, effectively directing the mob against Pence.

Aware of the increasing risks of violence Trump spoke at the Ellipse, where he encouraged the crowd to “fight like Hell.” He told them that “this is a matter of national security,” and that when there is fraud “you’re allowed to go by very different rules.” He colluded with rally organizers to falsely tell law enforcement there would be no march on the Capitol while the rally organizers fully knew Trump intended to tell the mob to do exactly that.

There is the indisputable fact that the mob responded to that speech by marching on the Capitol. Within an hour of his speech the mob was breaching the Capitol and the Vice President and members of Congress were fleeing for their lives.

When Trump finally told the mob to go home, he praised them. That evening he praised them again as “great patriots,” suggested that their actions were justified and that Congress got what it deserved.

Based on such undisputed evidence, and more, the Colorado Supreme Court concluded:

“President Trump engaged in insurrection . . . the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power . . . President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection . . . Moreover, the record amply demonstrates that President Trump fully intended to — and did — aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.”

Was Trump’s Speech Protected By The First Amendment

Trump argued that all the speech cited against him in the above discussions was Constitutionally protected free speech. The Colorado Supreme Court noted this question is governed by the seminal 1969 United States Supreme Court case, Bradenburg v. Ohio. This decision, on the issue of inciting violence, sets a high bar for speech to not be protected by the First Amendment. To not be protected the speech must:

(1) explicitly or implicitly encouraged the use of violence or lawless action;

(2) the speaker must intend that the speech induce violence;

(3) imminent violence must be the likely result of the speech.

Unless all three of these elements are present a speech appearing to incite violence remains protected by the First Amendment. The speech at issue in the Brandenberg case was racist and incendiary in tone. The defendant was a Klan leader, who while uttering racist slurs, urged a march on the Capitol. Notably, the speech was given in Ohio, not at the Capitol, and no such march manifested. The Supreme Court found that “abstract advocacy” of violence was insufficient unless paired with the elements above.

The dispute centered on the second element, where it must be shown that Trump intended for his speech to result in violence. Trump argued that his Ellipse speech should be examined only within its own context, and not the greater context of his actions that included a history of supporting violence.

The Colorado Supreme Court disagreed. “When assessing whether someone means to threaten another with unlawful violence, we sometimes need to consider more than the behavior exhibited on one occasion.” Thus, the Colorado Supreme Court agreed that it was appropriate for the trial court to consider Trump’s “history of courting extremists and endorsing political violence as legitimate and proper, as well as his efforts to undermine the legitimacy of the 2020 election results and hinder the certification of the Electoral College results in Congress.”

The Colorado Supreme Court recounted the long history of Trump endorsing violence at his rallies and Trump’s speech resulting in threats of violence against election officials. The court noted that one such official, Garbriel Sterling of Georgia pleaded with Trump “‘stop inspiring people to commit potential acts of violence’ or ‘someone’s going to get killed.’”

All the incendiary language of Trump’s Ellipse speech was cited again. His calls to “fight like Hell,” his claim the crowd could go “by very different rules,” and more that was understood by the crowd to be a call to arms. The Colorado Supreme Court noted that the trial court was not the first to reach this conclusion. It cited the federal court for the District of Columbia which in Thompson v. Trump held that Trump:

“invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building . . . where those very politicians were at work to certify an election that he had lost.”

Of course Trump supporters always focus on the one brief moment in Trump’s speech where he told them, “to peacefully and patriotically make your voices heard.” The Colorado Supreme Court agreed with trial court that this “isolated reference” could not inoculate Trump against the nearly hour long incendiary language that followed it. The court deemed that isolated reference “insincere” and existing only “to obfuscate and create plausible deniability.”

Trump knew of the potential for violence among his supporters and with that knowledge charged them up. Trump’s endorsement of that violence, during the violence, and after the violence, further establishes that Trump intended the violence to happen.

Does Section 3 of the 14th Amendment Apply To the Presidency?

Now we get to where the Colorado Supreme Court disagreed with trial court. Because whether the Section 3 applies to the Presidency is a pure question of law the Colorado Supreme Court reviewed this question de novo, affording no deference to the trial court’s decision.

The Colorado Supreme Court did not find it the trial court’s giving weight to the Presidency not being mentioned in Section 3 stating, “most likely that the Presidency is not specifically included because it is so evidently an “office.’” Senators and members of Congress are listed because their positions are not considered an office under the Constitution.

The Colorado Supreme Court notes that viewing the Presidency as an office is consistent with common usage of the words, but also the Constitution itself which refers “to the Presidency as an ‘Office’ twenty-five times.”

This includes the impeachment clause which disqualifies an impeached and removed individual from any office under the United States. Under the approach advanced by the trial court and Trump, “anyone impeached — including a President — could nonetheless go on to serve as President.” Indeed the only job an impeached and removed President could have in our government would be that of President. “This reading is nonsensical,” the court quite fairly declared pointing out that in the impeachment of both Clinton and Trump it was understood that removal from office would bar them from ever being President again.

The legislative history of debates over Section 3’s language is also persuasive. At least one Senator, Reverdy Johnson, read the provision as the trial court and Trump suggest and rose to raise that concern. He complained that, by not including the President, Section 3 did not go far enough as it would allow rebels into the highest office of the land. Senator Morrill replied, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” For Johnson the lightbulb went on. Satisfied he responded, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am.” As the Colorado Supreme Court put it:

This colloquy further supports the view that the drafters of this Amendment intended the phrase “any office” to be broadly inclusive, and certainly to include the Presidency.

As contemporaneous debate over the 14th Amendment proceeded many defended it because they firmly believed it would bar Jefferson Davis from the Presidency. When blanket amnesty, to remove the disability, was proposed in Congress, to allow former Confederates to again serve, many opposed on grounds it would allow the likes of Jefferson Davis into the Presidency. Accordingly to blanket amnesty was constrained so as to not include high ranking officials in the Confederacy.

The Colorado Supreme Court concluded:

“President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three.”

The Colorado Supreme Court’s Conclusion

“we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.”

https://www.dailykos.com/stories/2023/12/20/2212850/-A-Deep-Dive-Into-The-Colorado-Decision-Disqualifying-Trump?pm_campaign=front_page&pm_source=trending&pm_medium=web

Trapper wrote:Trump argued that all the speech cited against him in the above discussions was Constitutionally protected free speech. The Colorado Supreme Court noted this question is governed by the seminal 1969 United States Supreme Court case, Bradenburg v. Ohio. This decision, on the issue of inciting violence, sets a high bar for speech to not be protected by the First Amendment. To not be protected the speech must:

(1) explicitly or implicitly encouraged the use of violence or lawless action;

(2) the speaker must intend that the speech induce violence;

(3) imminent violence must be the likely result of the speech.

Unless all three of these elements are present a speech appearing to incite violence remains protected by the First Amendment. The speech at issue in the Brandenberg case was racist and incendiary in tone. The defendant was a Klan leader, who while uttering racist slurs, urged a march on the Capitol. Notably, the speech was given in Ohio, not at the Capitol, and no such march manifested. The Supreme Court found that “abstract advocacy” of violence was insufficient unless paired with the elements above.

sεяεηιτλ wrote:

Trapper Gus wrote:

When I watched him during the Jan 6th hearings he struck me as someone who is very cautious in expressing a legal opinion.

edit - much more about the court rulings...



https://www.dailykos.com/stories/2023/12/20/2212850/-A-Deep-Dive-Into-The-Colorado-Decision-Disqualifying-Trump?pm_campaign=front_page&pm_source=trending&pm_medium=web

" He colluded with rally organizers to falsely tell law enforcement there would be no march on the Capitol while the rally organizers fully knew Trump intended to tell the mob to do exactly that.  "

I had not heard that one, is it a fact?  He of course has been blaming pelosi for some reason but is there clear evidence his organizers deceived law enforcement?

kingstonlake wrote:

Could you point to the part of the clause that says the have to have been convicted?

Zurn wrote:

kingstonlake wrote:

Could you point to the part of the clause that says the have to have been convicted?

So all I have to do is accuse Joe Biden of insurrection and you would be okay throwing him off the ballot?    Interesting democracy you are in favor of.

Zurn wrote:

kingstonlake wrote:

Could you point to the part of the clause that says the have to have been convicted?

So all I have to do is accuse Joe Biden of insurrection and you would be okay throwing him off the ballot?    Interesting democracy you are in favor of.

kingstonlake wrote:

Zurn wrote:

So all I have to do is accuse Joe Biden of insurrection and you would be okay throwing him off the ballot?    Interesting democracy you are in favor of.

I think most of us are objective enough to know an insurrection, by definition, took place on Jan 6th.

Trapper Gus wrote:

Zurn wrote:

So all I have to do is accuse Joe Biden of insurrection and you would be okay throwing him off the ballot?    Interesting democracy you are in favor of.

You are such a dumbass, sometimes.  Most people are, on the internet, but you are working your way up to over 50% of the time.

No, two courts have ruled, after a trial where both Trump's lawyers & lawyers on the other side of this question presented their cases in these courts, that it was an insurrection, under the laws and court rulings which apply, and that Trump did "aid & abet" it.  

The Colorado Supreme Court ruling lays out the law in terms that makes a very good case, which will be hard for tSCOTUS to refute.  

I am thinking tSCOTUS will try to find some technicality to dismiss, but not overrule, the Colorado Courts's rulings.  

tSCOTUS is not going to want to rule on the question of the 14th Amendment's meaning, and certainly not on an accelerated timeline.

In order to make that charge stick against Biden there would need to be similar court rulings on whatever "pizza-gate" conspiracy theory is in your head.

Zurn wrote:So you guys think because two lower courts out of the thousands of courts in the USA state that Jan 6 was an insurrection Trump should be tossed off the ballot even though Trump has not been convicted of insurrection or for that matter any one else either.

If all of this insurrection is as obvious as you claim you would think somebody would be convicted for it. But hey, I guess it is easier for you to support democracy by keeping candidates off the ballot rather than let the voters decide.

Zurn wrote:So you guys think because two lower courts out of the thousands of courts in the USA state that Jan 6 was an insurrection Trump should be tossed off the ballot even though Trump has not been convicted of insurrection or for that matter any one else either.

If all of this insurrection is as obvious as you claim you would think somebody would be convicted for it.   But hey, I guess it is easier for you to support democracy by keeping candidates off the ballot rather than let the voters decide.  

kingstonlake wrote:

Zurn wrote:So you guys think because two lower courts out of the thousands of courts in the USA state that Jan 6 was an insurrection Trump should be tossed off the ballot even though Trump has not been convicted of insurrection or for that matter any one else either.

If all of this insurrection is as obvious as you claim you would think somebody would be convicted for it.   But hey, I guess it is easier for you to support democracy by keeping candidates off the ballot rather than let the voters decide.  

Why do you keep using this word like it’s a requirement?

Zurn wrote:

kingstonlake wrote:

Could you point to the part of the clause that says the have to have been convicted?

So all I have to do is accuse Joe Biden of insurrection and you would be okay throwing him off the ballot?    Interesting democracy you are in favor of.

kingstonlake wrote:

Zurn wrote:

So all I have to do is accuse Joe Biden of insurrection and you would be okay throwing him off the ballot?    Interesting democracy you are in favor of.

This isn’t a serious post.

kingstonlake wrote:I meant serious in he actually believes there is a single state Supreme Court that would rule that way.

Sure you could accuse him. Run it up the pole I guess.