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Trump may get to stay on the ballot thanks to a ridiculous technicality

A Colorado judge ruled that Donald Trump engaged in insurrection —?but that the president isn't an 'officer' under the Constitution.

Late Friday afternoon, Colorado District Judge Sarah Wallace handed down her ruling in a case brought to challenge former President Donald Trump’s eligibility to hold office again under Section 3 of the 14th Amendment. The case had several questions to answer, including whether this clause applied to Trump, whether he’d “engaged” in an insurrection and whether, as the plaintiffs in the case argued, the Colorado secretary of state should be required to keep him off the ballot.

The answers Wallace came to were stacked against Trump, including that “Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.” Wallace nevertheless decided Trump was eligible for the ballot anyway, finding that the drafters of the 14th Amendment did not include the president as an “officer” of the United States. The resulting victory for Trump, ordering an insurrectionist to be placed on the ballot, threatens the future of democracy on the most confounding of technicalities.

The resulting victory for Trump, ordering an insurrectionist to be placed on the ballot, threatens the future of democracy on the most confounding of technicalities.

The so-called insurrection clause of the 14th Amendment targets anyone who swore 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.” If, after swearing that oath, that person “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” then they are barred from being “Senator or Representative in Congress, or elector of President and Vice-President,” or holding “any office, civil or military” at the state or federal levels. Both parts of that construction are important, as we’ll get into later.

In her ruling, Wallace walked through each of the hurdles that could trip up the case and found that the petitioners — a group of Republican and unaffiliated voters — had cleared almost all of them. Unlike states like Michigan, state law in Colorado specifically gives the secretary of state the power to determine whether a candidate is qualified for the role in question. And past secretaries of state have kept people off the ballot for any number of reasons, clearly setting a precedent for doing the same with Trump.

Wallace agreed with testimony given during the two-week trial that the 14th Amendment’s insurrection clause didn’t only apply to those who took part in the Civil War and that a law later passed by Congress didn’t negate its effect. She also ruled that the House Jan. 6th Committee’s findings, which Trump-friendly witnesses attacked as a political hit job, were relevant and credible. Accordingly, she found that the Jan. 6, 2021 attack on the Capitol “easily satisfy” the definition of an insurrection as used in the 14th Amendment.

As for whether Trump “engaged” in an insurrection, Wallace rejected his defense that his statements leading up to storming the Capitol were protected speech under the First Amendment. While she rejected the petitioners’ argument that Trump’s inaction to stop the attack sooner was disqualifying in and of itself, she found it did help prove his intent. “Engagement under Section Three of the Fourteenth Amendment includes incitement to insurrection,” she concluded, and Trump’s actions fit the bill.

In the last few pages of the 102-page decision, though, Wallace turned toward whether the clause applies specifically to Trump as a former president. And that’s where everything falls apart.

Wallace ruled that it’s both unclear from the amendment’s phrasing whether the presidency is an “office…under the United States” that someone could be blocked from holding, or whether “Trump took an oath as ‘an officer of the United States’” when he became president.

It’s a stance that left me gobsmacked when I first read it because it may be the finest splitting of hairs that I’ve ever seen in so crucial a ruling. For example, Wallace buys the Trump team’s arguments that “Section Three specifies that the disqualifying oath is one to ‘support’ the Constitution whereas the Presidential oath is to ‘preserve, protect and defend’ the Constitution.” She also accepts the team's claim that an earlier draft of the amendment which included the president and vice president instead of “officers” meant that the two roles were deliberately excluded from the final version’s intended effects.

Let’s go ahead and say for a second that the drafters of the amendment didn’t specifically have former presidents in mind when listing people who had sworn to protect the Constitution. It may have been entirely unthinkable that such a person could engage in insurrection — but to refute that the president is, as expert testimony during the trial stated, an officer of the United States defies reason. Especially when that refutation is based on the idea that the term is too broad to include the presidency.

In finding the narrowest possible justification for ruling that Trump isn’t disqualified, Wallace refused to stick her neck out ahead of the other courts that have either punted on the decision until later or claiming that it’s Congress that needs to make the final call. In the second to last paragraph, she even concedes the ruling was influenced by her “reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three.”

Yes, it’s true that Trump is an anomaly in many ways. His attempt to stay in the White House after losing the 2020 election has raised a number of questions that our political and legal systems have never had to answer. But as the Justice Department said in a recent court filing, he stands “stands alone in American history for his alleged crimes. No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power.” And while he has not been convicted in either the federal election interference case or the one brought in Georgia, his well-established efforts to overturn a lawful election and prevent the peaceful transfer of power cannot and should not be underemphasized in these rulings.

I didn’t expect every case being filed against Trump’s qualifications to be a slam dunk victory for the plaintiffs. There were always going to be enough competing rulings that the question would reach the Supreme Court. I am also glad that there is now at the very least a legal determination that Trump met the higher bar of “engaging” in insurrection in 2021. But I am surprised, and disappointed, by how hard judges and other officials have scrambled to find even the slightest plausible loophole?to avoid holding Trump accountable.

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