Colorado Judge Sarah Wallace has become the latest jurist to reject the effort to bar former president Donald Trump from the ballot under the novel 14th Amendment theory. I have long been a vocal critic of the theory, which I view as historically and legally unfounded. I also view it as arguably the most dangerous theory to arise in decades. While Wallace reached the right conclusion, she committed, in my view, fundamental errors in her analysis on the free speech elements of the case.
The case involves a chilling effort of Democratic Secretary of State Jena Griswold to use her office to prevent voters from being able to cast their ballots for Trump, one of the leading candidates for the presidency. Like other challengers, she claimed to be protecting democracy by denying voters the ability to vote for their preferred candidate on the basis of this dubious theory. Polls show Trump and Biden in a statistical dead heat at 42% (Biden) to 38% (Trump) which is within the margin of error.
Judge Wallace rejected the use of the amendment to prevent voters from voting for Trump in the 2024 election, declaring that “[t]he Court holds there is scant direct evidence regarding whether the presidency is one of the positions subject to disqualification.”
In her 102-page ruling, Wallace declared that “[a]fter considering the arguments on both sides, the Court is persuaded that ‘officers of the United States’ did not include the President of the United States. It appears to the Court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the Presidential Oath.”
Accordingly, “[t]he Court orders the Secretary of State to place Donald J. Trump on the presidential primary ballot when it certifies the ballot on January 5, 2024,”
The scope of the provision is one of the inherent questions presented by this theory. The disqualified offices are enumerated in the section and start with “Senator or Representatives in Congress.” It then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3. 302. As the court notes,
“[t]o lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional.
There is also the problem with the limitation of Section 3 to those “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.” These challengers argue that Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.
Most of the public do not agree with that assessment. In polling, most view Jan. 6 for what it was: a protest that became a riot. One year after the riot, a CBS News poll showed that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it. But as the protest increased in size, some of us noted that we had never seen such a comparatively light level of security precautions, given the weeks of coverage anticipating the protest. We then watched as thinly deployed police barriers were overrun and a riot ensued. It was appalling, and most of us denounced it as it was unfolding. However, it was not a rebellion or insurrection in my view.
Section 3 of the 14th Amendment — the “disqualification clause” — was written after the 39th Congress convened in December 1865 and many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers. That was a real rebellion in which hundreds of thousands died.
While Judge Wallace reached the right result, I have major qualms with her analysis. She states as a fact that Trump was guilty of incitement, a charge that no prosecutor has ever brought against him. That includes the D.C. Attorney General who announced his intention to pursue such charges. It also includes Special Counsel Jack Smith who threw every other possible criminal charge against Trump.
Nevertheless, Judge Wallace concludes that Trump “incited imminent lawless violence.” She further found that “[i]n addition to his consistent endorsement of political violence, Trump undertook efforts to undermine the legitimacy of the 2020 presidential election well in advance of the election, making accusations of widespread corruption, voter fraud, and election rigging.”
As such, she finds that his speech was not protected by the First Amendment. While I am a critic of Trump’s speech and actions on that day, I still believe that the the court is completely wrong on the First Amendment.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
It is common for political leaders to call for protests at the federal or state capitols when controversial legislation or actions are being taken. Indeed, in past elections, Democratic members also protested elections and challenged electoral votes in Congress.
The fact is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”
Trump also stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”
He ended his speech by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.
As I have discussed previously, the Ku Klux Klan leader Clarence Brandenburg referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court nevertheless overturned his conviction. Likewise, in Hess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets, holding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” That was ruled as the hyperbolic language of advocacy.
Judge Wallace dismissed such arguments and holds that “while Trump’s Ellipse speech did mention “peaceful” conduct in his command to march to the Capitol, the overall tenor was that to save the democracy and the country the attendees needed to fight.”
The decision comes just days after another defeat in Michigan for advocates of this theory.
Had Wallace used this analysis to find in favor of disqualification, I believe that she would have been eventually reversed. As it stands, we will have to wait to see if Griswold has the confidence of her convictions to appeal. I hope that she does. We need to put this insidious legal theory to rest with the finality and clarity of a Supreme Court decision.
Here is the opinion: Anderson v. Griswold
Jonathan, I take issue with this paragraph:
“The fact is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers ‘to peacefully and patriotically make your voices heard.'”
In fact, Trump made many inflammatory statements that day. You can see many of them on this page:
https://apnews.com/article/fact-check-trump-us-capitol-remarks-221518bc174f9bc3dd6e108e653ed08d
No intelligent person listens to a simpleton.
Jonathan, I take issue with this paragraph:
“The fact is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers ‘to peacefully and patriotically make your voices heard.'”
In fact, Trump made many inflammatory statements that day. You can see many of them on this page:
https://apnews.com/article/fact-check-trump-us-capitol-remarks-221518bc174f9bc3dd6e108e653ed08d
One of things that really makes America great is that “politics” (issues favored by voters) must circumscribe the U.S. Constitution.
21st Century Conservatives maybe for the first time in over 200 years are making the opposite argument.
What if the majority of voters favored taking away gun rights. Not popular with enough voters so politics outweighs the U.S. Constitution.
Conservatives are now making the argument that politics outweighs the 14th Amendment.
So couldn’t that same measuring stick be used against gun owners? Or women’s rights? Or African-American rights? Or LGBT-rights?
Jim Crow laws were when local “politics” violated constitutional out-of-bounds. The federal government and Supreme Court ruled that politics did NOT justify violating constitutional rights.
Trump trying to steal an election violates the 14th Amendment rights of the majority of voters in 2020. Section 3 is absolutely legitimate.
There is a “political” mechanism available if the U.S. Constitution is fundamentally flawed: a constitutional amendment!
“Trump trying to steal an election violates the 14th Amendment rights of the majority of voters in 2020. Section 3 is absolutely legitimate.”
Can’t find any of those words in the 14th Amendment.
If any of your jibberish were true, he would have already been disqualified, for successfully stealing the 2016 election. Remember? Yea, thats how it works. Somebody say it, and its so. Get a grip, nincompoop.
Keeping Trump (illegally) off the ballot “violates the 14th Amendment rights of the majority of voters” – see how stupid your “reasoning” is?
Spectacular idiocy. Must be a female.
Many people are conflating two different things: 1) A conclusion that X is guilty of insurrection. 2) The penalty (disqualification). 14.3 deals with 2). It doesn’t even speak to 1).
If *not* by a judicial process (as in the Jefferson Davis case), then *how* is 1) determined? By what process and standards? 1) is the fundamental issue. 2) is triggered as a penalty only *after* a legally mandated process proves 1).
Any hand-waving on 1) implies a government of men, not of laws.
Overall, an awful ruling for trump because it holds that he spurred an insurrection. Notice Turley doesn’t really address that with the gravity it deserves…, or the effect it will have on future cases now the court holds what it has re insurrection.
No authority to “hold” any such thing. You or any other idiot may as well have said it. Insurrection is a specific crime, detailed in 18 USC 2383. The only entitity that can “hold” that this particular crime was commited, is a jury of citizens.
If that moron judge “held” that Trump committed murder, or tax evasion, or jaywalking, would that make it so? NO. Dream on.
The “judge” needs to be sued to correct the judicial record, which currently contains the errors you identify above Jonathan.
Griswold also needs to be sued for fraud and depravation of rights, then she must be removed and prosecuted.
Osama bin Laden’s supporters at America’s elite universities cite bin Laden’s Letter to America as evidence that bin Laden was a hero.
President Obama ordered bin Laden’s assassination.
If bin Laden’s supporters are right, doesn’t that make Obama a war criminal?
The dears blow to America’s model of government was the “Bush Preemption Doctrine” and “Citizens United”.
Turley has been nearly silent on federally funded “Fusion Centers” (unconstitutional blacklisting centers) located in every state.
Turley (or anyone on this post) should attempt to file a FOIA request to the FC in your state, for non-terrorism records that don’t identify anyone’s personal information.
Circumstantial evidence indicates there are at least 40,000 Americans blacklisted since 9/11 (probably mostly Democrats). It’s not implausible that maybe another 50,000 Trump supporters were added to these illegal blacklists after the January 6 insurrection.
Fusion Centers are many times not even investigating crimes but legal First Amendment political speech. Turley should be disturbed at this level of unwarranted and excessive secrecy by FCs.
This is the real “Deep State” most Conservatives have ignored for over 20 years. Any citizen can file a FOIA to your local Fusion Center – simply request records and label it a “Freedom of Information Act Request”. Most important, obtain the name of the top FOIA officer at your Fusion Center.
If they refuse to follow the FOIA laws, you will need the name of the FOIA officer to summon them to court in front of a judge (probably cost less than $200 in most state courts, federal courts less than $1000 court costs). They lie to citizens but won’t lie to judges for fear of legal penalty.
The left is frothing at the mouth in their insane attempts at calling a protest march, an insurrection. The goofy opinion is required to keep the “Get Trump” Macy’s Day balloon afloat.
Here is a 3 minute clip of the shocking violence taking place on Jan 6. (its okay it falls short of the Oct 7 inhumanity in Israel. )
https://althouse.blogspot.com/2023/11/is-there-any-good-reason-why-this-was.html
People of good faith like Professor Turley argue niceties of the law.
Meanwhile, the Democrat party leadership will do anything – absolutely anything – to maintain power. In their ideology, the law is nothing more than a tool for advancing their political objectives.
The Democrats will keep trying until they can find Letitia James-like judges – Democrat party operatives in robes- to throw their most hated political opponent off the ballot in a couple of swing states.
Why aren’t Jena Griswold and her co-conspirators being prosecuted for election interference?
The problem is she said it was an insurrection. And what the CREWS ( look at your mail) wanted was exactly that. For issue preclusion. In lawfare Nylon foot note4. To firm it up as an inserection. When what’s really happening is a revolution. Shev
Griwold needs to read the entire 14th
..sec 5 says congress gets to rule… Not judge Wallace. Not judges but Congress! This is the ultimate “political’ issue even the supreme court punts. Wallace had no business finding it an insurrection. Bc it was not on point. There for her opinion is a fortori a political one. Ss orbitor dicta. That is “inserrection’ had nothing to do with her holding and there fore that issue is still alive and not precluded. Shev
To anyone still thinking any SoS will get away with this nonsense…
Insurrection and rebellion are crimes.
These crimes are defined in 18 USC 2383.
No SoS, judge, congress, newspaper editor, or dufus commenter here can find, hold, determine, or convict someone of engaging in those crimes.
Only a jury can. Period.
That’s garbage. The disqualification clause is not a criminal penalty, so there is no place for a jury in applying it. It is to be applied exactly like all the other qualification criteria, i.e. birth, citizenship, age, and residence. It was never intended or contemplated that the disqualification would apply only to those convicted of a crime. The best proof is that the clause was originally incorporated into the constitution specifically because Alexander Stephens was elected to the senate; and yet Stephens was never charged with a crime, let alone convicted. Try explaining that away, if you dare.
You say the disqualification clause is not a criminal penalty. Obviously it is a penalty because it results in the loss of a civil right. Exactly how that penalty is to be enforced is left exclusively to Congress by subsection 5. It will be noted that the case of Stephens was dealt with by the Senate, not a state election official or local judge. That kind of enforcement would be pure madness, opening the door to unending interstate conflict.
The jury is Congress. So the original poster is correct in that no SecState can do this, just not in application.
Only Congress can, and 14A DOES NOT APPLY to the chief executive, i.e. president. SCOTUS is historically clear on this.
Try explaining that away, if you dare.
Hmmmm, where does it mention Stephens in the Amendment?
Section 5 charges Congress with enforcement legislation. Where is that legislation?
The idea the you dont like that insurrection and rebellion are crimes does not change the fact that they are. Words matter.
Murder is a crime. If the 14th excluded anyone who “engaged in murder”, it would not be up to you or a SoS to determine if someone engaged in murder. Why is that???
Age, citizenship, and the rest of your piss poor analogy are a) facts that can a SoS can and has the power to establish and b) are qualifications, not disqualifications. A crime is not. Insurrection and rebellion are crimes. No one but a jury can establish that.
“The disqualification clause is not a criminal penalty . . .”
You are conflating two different things: 1) A conclusion that X is guilty of insurrection. 2) The penalty (disqualification). 14.3 deals with 2). It doesn’t even speak to 1).
If *not* by trial (as in the Davis case), then *how* is 1) determined? By what process and standards?
You hand-waving on 1) implies a government of men, not of laws.
JAN 6 WAS A RIOT
JAN 6 WAS NOT AN INSURRECTION
________________________________________
Merriam-Webster
insurrection
noun
in·sur·rec·tion ˌin(t)-sə-ˈrek-shən
: an act or instance of revolting against civil authority or an established government
__________________________________________________________________________________________
revolt
verb
re·volt ri-ˈvōlt
intransitive verb
1: to renounce allegiance or subjection (as to a government) : rebel
2a: to experience disgust or shock
2b: to turn away with disgust
noun
1: a renouncing of allegiance (as to a government or party) especially : a determined armed uprising
2: a movement or expression of vigorous dissent
_____________________________________________________
riot
noun
ri·ot ˈrī-ət
1a: a violent public disorder – specifically : a tumultuous disturbance of the public peace by three or more persons assembled together and acting with a common intent
____________________________________________________________________________________________________________________________________________________________________________________
tumult
noun
tu·mult ˈtü-ˌməlt
1a: disorderly agitation or milling about of a crowd usually with uproar and confusion of voices : commotion
1b: a turbulent uprising : riot
_______________________________
JAN 6 WAS A RIOT INCITED AND AGITATED BY “FALSE FLAG” FBI ACTORS
Insurrection and rebellion are defined by 18 USC 2383, not webster, a secretary of state, a judge, dennis, gigi, or svelass.
18 U.S. Code § 2383 – Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Sounds like ANTIFA and BLM during COVID insurrections. They incited. They set foot on, they assisted and engaged in rebellion against the laws of the United States and police authority. Case closed. Oh, wait. It was never opened.
Wow, look at that! It looks like legislation to enforce Section 3 of the 14th. My my my.
AGAIN,
JAN 6 WAS A RIOT
JAN 6 WAS NOT AN INSURRECTION
________________________________________
Merriam-Webster
insurrection
noun
in·sur·rec·tion ˌin(t)-sə-ˈrek-shən
: an act or instance of revolting against civil authority or an established government
__________________________________________________________________________________________
revolt
verb
re·volt ri-ˈvōlt
intransitive verb
1: to renounce allegiance or subjection (as to a government) : rebel
2a: to experience disgust or shock
2b: to turn away with disgust
noun
1: a renouncing of allegiance (as to a government or party) especially : a determined armed uprising
2: a movement or expression of vigorous dissent
_____________________________________________________
riot
noun
ri·ot ˈrī-ət
1a: a violent public disorder – specifically : a tumultuous disturbance of the public peace by three or more persons assembled together and acting with a common intent
____________________________________________________________________________________________________________________________________________________________________________________
tumult
noun
tu·mult ˈtü-ˌməlt
1a: disorderly agitation or milling about of a crowd usually with uproar and confusion of voices : commotion
1b: a turbulent uprising : riot
JIm, the USC section you cite was first passed in 1948 and amended in 1994.
Sources 1948: 62 Stat 808
1994: 108 Stat 2147
But 14A was ratified in 1868. Since statutes are inferior to the Constitution, your cite can’t help us in deciding the definition of insurrection.
It doesn’t really matter. CO Judge is just being tricky and disingenuous in the manner of John Marshall in MARBURY. The moment she decided that Big Don’s speech was insurrectionary, she should have tossed him from the ballot. Trouble is, there’s time enough for appeals, which she thought would overturn her decision. So she claimed she wasn’t sure if 14A Section 3 applied to a Prez, thereby handing the decision to Big Don.
Why go through with this foofaraw., Because it intact that part of the decision that said Big Don is insurrectiony. This will play a prominent role in Dem party propaganda in the coming year. Wallace is already fantasizing about being on SCOTUS, though a circuit bench slot is more likely her reward.
Another reason to vote for Big Don: making sure Wallace’s bad faith is not rewarded.
“JIm, the USC section you cite was first passed in 1948 and amended in 1994.
But 14A was ratified in 1868. Since statutes are inferior to the Constitution, your cite can’t help us in deciding the definition of insurrection.”
What??? LMAO. You have it EXACTLY backwards. Every law enacted to enforce a provision of the constitution came AFTER the Constitution, else it would be “unconstitutional”. Statutes constanty define and operate within the meaning of Amendments, and if they don’t correctly do so, SCOTUS is there to strike it down.
18 USC 2383 uses the EXACT wording from Section 3. It enacts Section 5, as allowed by Section 5. You may think its a coicidence, I don’t.
LIKELY started by the Capitol Police….
New J6 Footage Shows Capitol Police May Have Incited Riot By Firing Munitions Into Peaceful Crowd…
https://x.com/InvestigateJ6/status/1699455735288021400?s=20
OT: Do you know who isn’t protesting Israel?
https://www.facebook.com/reel/741504621355444
The most important thing that we must remember is that those who claim to be freedom fighters for Democracy are the ones who came up with the idea to block Trump from being on the ballot. The people who are making these attempts are controlled by the leaders of the Democratic Party. Now they are expediting the lawsuits to put their losses behind them to keep them far away from Election Day. They will want us to forget but enough of us will not forget and will effect the outcome. They recognize a Democratic idea that is being rejected by the American people. Now they run from defund the police, gender affirming care, Fentanyl coming from the southern border and Democratically controlled cities begging for federal dollars to support illegal immigrants sleeping on the street in front of the Roosevelt Hotel in New York City. They’re taking their losses now in the hope that you will forget on Election Day. Will you?
Democratic Euphemisms Indoctrination (DEI)
TiT,
No, I will not forget on election day.
Nor will the Black community, the Hispanic community and other minority groups who are upset the cities of Chicago and NYC are spending more money on illegal aliens than they are of their own local legal citizens.
THE 14TH AMENDMENT IS NULL
The “Reconstruction Amendments” are illicit, invalid, illegitimate, and unconstitutional to this day. Amendments to the Constitution are nearly impossible to enact, making it clear that some ulterior force was at work in the improper proposal and ratification of not one but three “RECONSTRUCTION Amendments.” That force was unconstitutional, violent war, and brutal post-war military occupation and oppression. Lincoln’s denial of fully constitutional and not prohibited secession was illegal and unconstitutional, deliberately so, and must have been struck down by the Supreme Court. Every subsequent act of Lincoln was similarly illicit, invalid, illegitimate, and unconstitutional. Lincoln’s “fake” government rammed through “fake” “Reconstruction Amendments.” Lincoln deserved credit for opposing slavery. Reprehensible slavery was established by legal means and must have been abrogated by legal means in an American society of laws. Lincoln incorrectly, high-criminally, and disastrously chose the course of deception and fraud, the abject course of wielding the “political power [that] grows out of the barrel of a gun.” Abraham Lincoln, a fellow traveler of Karl Marx, ended the constitutional freedom of the American Founders and Framers after a mere 71 years.
_________________________________________________________________________________________________________________________________________________________
“They consider…that it fell to the lot of Abraham Lincoln…to lead his country through…the RECONSTRUCTION OF A SOCIAL WORLD.”
– Karl Marx Letter to Abraham Lincoln, 1865
The Supreme Court acted retroactively by 50 years to strike down federal abortion, returning the issue to the States, precisely where the Constitution places it.
The Supreme Court must now act retroactively by 150 years to strike down the improperly and unconstitutionally ratified “Reconstruction Amendments,” which were forcibly and brutally imposed through illicit, invalid tyranny and oppression.