The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

Section 3 of the 14^th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.

Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14^th Amendment to Donald Trump.

Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. 

After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.

Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.

Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.

Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.

I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14^th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

On Trump’s Eligibility to Run for President: Who Decides?

The 14^th Amendment of the U.S. Constitution “bans anyone who took an oath to uphold the Constitution but who subsequently ‘engaged in insurrection or rebellion against,’ or gave ‘aid or comfort of the enemies’ of the Constitution from seeking any federal or state office.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

During the summer of 2023, lawyers opined on whether Don Trump is eligible to run for the U.S. presidency in 2024. It is one thing for lawyers on law-school faculties to decide whether Donald Trump, a former U.S. President as of 2023, is ineligible to run for president in 2024; it is quite another thing for the U.S. Supreme Court to make the determination; only the latter has governmental legitimacy that can legally be enforced, for the U.S. Constitution gives the federal supreme court the task of interpreting that constitution. In this case, the high court would be in the position of making decisions of fact—did Trump engage in an insurrection—and applying that decision to the 14^th Amendment. “The question of Donald Trump’s disqualification under the 14^th Amendment will be decided by the Supreme Court,” Michael Luttig, a conservative former federal appellate judge said in 2023.[2] Aside from the prediction, I contend that it should be.

The comment made by Luttig, who had actually been a judge, didn’t stop lawyers who teach at law schools from writing as if their own opinion were enough to render the former president ineligible to run for president. Just because someone ventures an opinion does not make it so. Even lawyers who specialize on writing in the field of constitutional law are, after all, merely private citizens like the rest of us. Of course, they, along with the rest of the American electorate, could decide indirectly through voting for or against Don Trump on the basis of determinations of whether he engaged in an insurrection. There are several problems with this method.

First, the voters would need to know how the framers used the word, insurrection, assuming an original intent hermeneutic, or else what the word means in its legal sense in 2023. The electorate would also have to “research”—and some potential voters put me off when I canvassed door to door by saying that they needed to research the candidates (yeah, right)—the Trumps various actions that could be considered to be insurrectionist: urging a crowd to pressure Congress on January 6, 2020 when it was counting the states’ respective ballots of electors, telling Vice President Pence that he had the authority to substitute slates of Trump electors in Arizona, Georgia, and other states, pressuring election officials in Georgia to “find” votes so Trump would win the state, and considering the use of the military on the capitol so Congress would use his slates of electors in states that he lost. Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential to the viability of a republic. They are also necessary for an electorate to apply constitutional vigor even to a candidate whom some voters like.

Secondly, letting the voters decide cannot keep Trump off any ballot prior to the election, not to mention prior to the Republican Party’s nomination process, because an election is the means by which voters would decide Trump’s fate. Former New Jersey governor Chris Kristy’s assertion, “The voters of our party are going to need to determine this question,” is neither competent nor fair to the Republic Party. An election before the election might be feasible, but then perhaps the first election would then de facto be the presidential election itself.

Deciding the matter by whatever means after the Republican Party’s convention would not be fair to the party. If election officials or a court later decide that Trump is ineligible, the party would suddenly be left, after its convention, without a nominee for president.[3] Because the U.S. Supreme Court “keeps its own schedule and is not bound by electoral deadlines, there exists the possibility that Trump could lock down enough delegates to win the Republican nomination—or even be officially nominated—only to be subsequently removed from the presidential ballot.”[4] Perhaps in such a case the Republican National Committee would be tasked with selecting the nominee, opening the door to the possibility of “back room” political deal-making and even bribes. That rather undemocratic consequence would be ironic if the people had been the deciders in a special election or referendum.

So, leaving the matter up to the voters is problematic; the matter of a nominee could ironically be decided by committee. That leaves us with either election officials acting independently of each other or all together, or the U.S. Supreme Court justices to decide. Just because some citizens claim that Trump is ineligible to run for office does not make it so. That almost all lawyers teaching constitutional law in the United States have only one—hence undergraduate—degree in law is all the more reason why their writings should not be taken as binding for election officials. Even if “the case is not even close,” as William Baude and Michael Paulsen wrote, it is not necessarily the case that, “All who are committed to the Constitution should take note and say so.”[5] Not only are articles in law reviews, whose editors are undergraduate law students, not objective analysis at least in constitutional law; such writings can be deemed political, and even instances of political activism claiming that readers should take action of a political sort.

But should election officials of local, state, or federal jurisdiction be the deciders? I contend that they should not. Firstly, if even just a few officials at the local or state level decide to exclude Don Trump, then the judgment in favor of Trump by other election officials would be impaired because he would not be on the ballot in every locale or state. It would be extra-constitutional (i.e., outside of the constitution) should all of the officials in the U.S. vote on whether to exclude him, for all of the officials, as a group, are not organized as a group constitutionally. Secondly, election officials do not necessarily have expertise on what exactly constitutes insurrection. Thirdly, they would inevitably be sued, whatever they decide, so the U.S. Supreme Court would be the final decider anyway.

An alternative way that the high court could wind up deciding on Trump’s eligibility would be deciding the inevitable appeal that would be made if Trump will have been found guilty of insurrection by a jury. It is significant that Trump had not been indicted on the charge of insurrection even though 91 charges were leveled against him as of August, 2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department, would have charged the former president with insurrection had evidence existed to support that particular charge. Unlike the lawyers who teach in law schools, Smith had a formal means—a grand jury and a court with a judge—to make the charge, and he did not. Smith also had access to the evidence, which lawyers in law schools did not have. So, it is odd that the lawyers who claimed that Trump had engaged in an insurrection did so knowing that Smith had decided not to level that charge. Even stranger would be such a lawyer presuming that one’s opinion, whether in an interview or argued in an article in a law school’s undergraduate publication, is sufficient for election officials to keep Trump off their respective ballots.

In short, it could be argued that because Trump has not even been charged with insurrection, he cannot be found to be ineligible for office based on insurrectionist activities. It could also be argued, however, that the inclusion of insurrection in the 14^th Amendment is a political rather than a judicial matter. Under this reading, Congress could pass a law—rather than using the word insurrection for January 6^th in an award given to three Capitol Hill police employees—declaring that Trump engaged in an insurrection, and the high court would decide the inevitable constitutional challenge in court. But unlike impeaching and removing a president from office, no constitutional language supports applying the political process of how a bill becomes law.

Of all the chatter by experts and non-experts alike, the fact that Jack Smith did not charge Don Trump with having engaged in an insurrection is most salient to me in this case. To be sure, the U.S. Supreme Court justices could find that if he is found guilty of any of the existing charges bearing on January 6^, 2020, pressuring Georgian officials to “find” votes, or instigating false slates of electors in a few states, that they constitute insurrectionist activities.  The “finding” of votes, such as probably happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption in American politics, however. Even so, the justices could find on their own that Trump is guilty of fomenting or agitating an insurrection. The justices would need a suit to be brought to the court, however.

The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.