Colorado Judge Rejects 14th Amendment Disqualification Effort to Bar Trump from Ballot

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




196 thoughts on “Colorado Judge Rejects 14th Amendment Disqualification Effort to Bar Trump from Ballot”

  1. Turley is wrong. The judge did have the correct reasoning behind the incitement claim. As is common with those in denial of what happened on Jan 6, the claim that it was a “mostly peaceful protest” is pure hogwash. Republicans are good at one thing, denying responsibility and accountability. The Jan 6 ‘riot’ was predetermined it was going to be an insurrection before it became a ‘riot’. The proud boys and the Bugaloo men were already planning on inciting the crowd using Trump’s rhetoric implying the disruption. This is why many were found guilty of sedition.

    Turley forgets, conveniently, that this is seen through the totality of the circumstances. The big picture, not just the particular incidents within the ‘riot’. Turley should call it for what it really was, a protest that turned into a riot that turned into an insurrection. Trump DID say to “fight like hell”. Trump has promoted violence before, at his rallies. He literally encouraged the crowd to beat up protesters at his rallies and offered to pay for their court costs. Trump knew what his supporters would do and were capable of doing. He wanted them to do what he couldn’t say out loud. Trump’s rhetoric encouraged the thinking that it’s ok to be violent if it was to aimed a democrats or even the ‘fake news’. Journalists covering his rallies were targets of insults, threats, and violence. It was that thrill Trump’’s supporters craved and he knew it.

    Professor Turley makes it clear that he denounced Trump’s speech as he was giving it. But he doesn’t really explain why. Everyone knew what he was doing including Turley. Couching it as “reckless” means it was reckless for a reason, because it was inciting. The secret service was aware, Trump was aware that there were people with weapons in the crowd. Turmp tried to remove the metal detectors leading into his rally on the ellipse. He wanted to stop the count and he knew his supporters would do it for him. It was not something that “simply got out of hand.” It was deliberate, he refused to do anything about it for hours even when his own chief of staff and his loyal supporters in congress were pleading him to do something. This is where he was aiding the insurrection. By sitting back and letting it happen knowing that it’s exactly what he wanted the crowd do to. He he refused to stop it. He knew the counting process would stop because of the ‘rioting’ and the people ransacking the capitol, assaulting law enforcement, and calling for hangings. On top of all that he was putting pressure on his VP to an unconstitutional move to send the votes of certain states back. Pence had no authority to do that. Turley wants to brush this off as a “mostly peaceful” protest that unfortunately turned into a riot. BS. Professor Turley and the rest of those denying it forget that Trump WANTED to lead them to the capitol. He WANTED to join them and lead the crowd. The reason he didn’t is because the secret service and his own chief of staff vociferously told everyone not to allow him to do that. If he went with the crowd he would have been directly culpable of inciting, aiding and abetting the violence. This is why the 14th amendment qualifies. Just because the clause has not been enforced for over 100 years doesn’t mean it doesn’t apply to Trump. It certainly does. Once he’s on the ballot, anyone, anyone can challenge it using the clause on the 14th amendment. The theory comes from scholars who are constitutional originalists. The same people who view the constitution the same way are a majority of Supreme Court justices.

    1. Quick question, has anyone ACTUALLY been charged with insurrection? Let me help you out. The answer is no. So now please answer me why not? Thank you you in advance for your response.

      1. The Judge should not have even reached the question of whether Trump gave aid and comfort to an insurrection. Since she concluded that violations of the Presidential oath are not covered, she should have decided based on that alone. She clearly was more concerned to virtue signal than to respect the limits of the judicial function.

        1. “Since she concluded that violations of the Presidential oath are not covered, she should have decided based on that alone.”

          Every government official is under the same oath. To uphold and protect the Constitution. Trump is no different. Trump did give air and comfort when he encouraged the crowd and let it happen for hours before finally calling them off. He is the only one who could call them off. The mob was acting at his behest. Those who have been charged explicitly told the court they were acting under the impression that trump told them to.

          1. You disagree with the Judge. She concluded that violations of the President’s oath are not covered. Since she concluded that, there was no reason for
            her to consider whether Trump gave aid and comfort to an insurrection.

            Former AG Mukasey reached the same conclusion. When Professor Steven Calabresi read his argument, Calabresi changed his view and agreed that Trump could not be disqualified under the 14th amendment.

            1. Democrats are all insurrectionists now. Add Eminem’s hit song, Lose Yourself, and all left wing white folk lose themselves in violence

              University of Michigan, Pro-Palestinian Protesters Occupy Administrative Building

              Pro-Palestinian student activists have taken over the Ruthven Building on the University of Michigan campus. CBS News reports:

              ‘Members of the Students Allied for Freedom and Equality (SAFE) and a coalition of 45 other student organizations rallied on campus beginning at 3 p.m., calling for the university to divest from companies they say contributed to the crisis in Gaza

              A U of M spokesperson said about 200 protestors ‘forcefully gained access to a locked Ruthven Administration Building.’ SAFE is the Students for Justice in Palestine (SJP) chapter at U of M.”


          2. He encouraged the crowd to proceed peacefully to the Capitol, as many demonstrators have done in the past, in accordance with their constitutional rights.

      2. Insurrection is synonymous with seditious conspiracy. Since there have been a lot of people charged and found guilty of seditious crimes it’s quite easy to imply it’s also insurrectionist behavior.

        “Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel.”

        1. Seditious conspiracy is not necessarily violent. Insurrections are. The terms are not synonymous.

          For that matter, neither are infer and imply.

          You should learn how to use words. It may help.

          1. You should learn how to use words. It may help.

            He doesn’t have to. All does is cut and past stuff, others give. No bright enough to understand what he is posting.

        2. “Insurrection is synonymous with seditious conspiracy.”

          Lmao just makin’ sh!t up again.

          They are about as synonymous as appraisal and assessment. Context moron, context.

          Sedition is not listed in 18 USC 2383. Insurrection and rebellion are. Oh wow, what a coincidence, the exact same two words used in section 3 of the 14th!!!

          Repeating a lie over and over does not make it true.


    2. Turley is wrong. The judge did have the correct reasoning behind the incitement claim

      Her opinion, on something not before the court, has no more weight than any other person.

      The ruling is clear. The office of President is not covered by the Amendment.

  2. Jonathan: I’ll get back to the Colorado case but first I want to report on some breaking news. I title this comment “Elon Musk tries to silence his critics and has gone full neo-Nazi”.

    When Musk took over Twitter (now “X”) you claimed he would bring “free speech” back to the platform because Twitter had “banned” and “censored” conservative voices under orders by the government. There was never any evidence the FBI gave any such orders but it didn’t stop your frequent columns and testimony before Congress about Twitter’s “threat to free speech”.

    So what has happened since Musk took charge? “X” is now a cesspool of anti-Semitic and neo-Nazi propaganda. Musk is OK with that. On Wednesday Musk endorsed a post by a user that said: “Jewish communities have been pushing the exact kind of dialectical hatred against Whites that they claim to want people to stop using against them”. The post reflects the “great replacement theory” that falsely claims Jews want to bring non-white undocumented people into western countries to displace Whites. Musk responded to the post: “You have said the actual truth”.

    In response to all this hate speech on “X” these days major advertisers have fled the platform in droves. But some big brands remain like IBM, Oracle and others. But Musk is really hurting from lack of advertising so he is striking back at his critics. This past summer he sued the Center for Countering Digital because they have been documenting all the hate speech on “X”. Last February CCDH filed a motion to dismiss Musk’s lawsuit. That is still pending. In it’s motion CCDH said: “Apparently unhappy with how it is faring in the marketplace of ideas, X Corp. asks this court to shut that marketplace down–to punish the CCDH Defendants for their speech and to silence others who might speak up about X Corp. in the future”…and X Corp. wants damages… “based on how advertisers reacted to what the CCDH Defendants said about X Corp in their public reports”.

    And now Musk is doubling down in trying to silence his critics. Yesterday he said that on Monday he is going to file a “thermonuclear lawsuit” against Media Matters that is also reporting on the rise of hate speech on “X”. As it turns out Musk is not a champion of “free speech”. He wants to silence anyone or any organization that criticizes him. He is emulating DJT who often files “slap” lawsuits to try to silence his critics. Michael Cohen comes to mind. Fortunately, the courts will stand in the way to protect the 1st Amendment against the attacks by Musk and DJT.

    The Q is why, as a “free speech” purist, you have remained silent on Musk’s latest attacks on the 1st Amendment?

    1. Defamation is not protected by the first amendment. If Musk can show that Media Matters is lying about his company and harming its revenue, then he has every right to sue and win.

      1. Pointing out the fact that anti-semitism and neo-nazi rhetoric is rampant on “x” is not defamation.

        Elon Musk is an avowed free speech absolutist. He’s not happy that he is being criticized. Boo hoo. It’s what he wanted. It’s his professed philosophy. That he can’t understand the consequences of what an absolutist position entails is pretty ironic.

        1. Media Matters didn’t “point out” any fact. It falsely represented to advertisers that their ads had been deliberately positioned next to neo-nazi ads. That is defamation, and it is not protected speech. He is right to sue them, and if there is any justice he will win and shut them down.

      2. Defamation is absolutely protected by the 1st Amendment.

        Defamation is simultaneously actionable.

        One may defame all one wants.

        Parties grievously defamed may sue all they want.

        One is wise to choose his freely spoken words.

    2. DM, a few things to note on the Musk situation. Historically, Jews in the US have aligned with the Democratic Party, and often with its most progressive wing. Recently, this alignment has extended to support for the “anti-racist” ideology comprising critical race theory and intersectionality. That ideology demonises whites as privileged oppressors who use their control over institutions to oppress “BIPoC folx” through “systemic racism.” Internationally, this ideology sees “settler colonialism” as the means through which white Europeans have oppressed indigenous peoples throughout the world.

      Many Jewish progressives have now written essays expressing their surprise that this ideology, which they supported, sees Jews in the US as among the white oppressors and in Israel as settler colonialists. A number of them are now rethinking their past allegiances. I believe this is what Musk was noticing.

      Unfortunately, it appears that Musk has now caved to the ADL and big advertisers by banning discussions of “decolonisation” and a free Palestine “from the river to the sea.” These concepts should not be censored. Discussion of them is permitted by the First Amendment, and Musk should not ban speech that is protected, regardless of how misguided it may be, even if he has the right to do so because he is a private actor.

    3. Dennis, Elon is not abiding by his own beliefs.

      “Elon Musk, the owner of social media platform X, has announced that chants such as “From the river to the sea” and calls for “decolonization” of Israel “necessarily imply genocide” and says that it does constitute a major violation of X terms of use and will lead to suspensions.”

      Free speech absolutist? I don’t think so.

    4. Mr. Dennis McIntyre,

      May I suggest you expand your reading and viewing news habits and step outside your own echo chamber. Your comments provide ample evidence you are just parroting what the anti-conservatives are telling you.

      First, there is a plethora of evidence the government was influencing tech platforms censorship. That is no longer in dispute. The question is to a degree now.

      Second, where is your evidence that “X is now a cesspool of anti-Semitic and neo-Nazi propaganda.” Surely, since you are so knowledgeable and worldly you can tell us what is and what is not such propaganda.

      Third, after the spurious uproar, which can only be classified as a false equivalence barrage, to Musk’s response, Musk explained he meant the ADL and other like organizations.

      Fourth, where is your evidence that advertisers are leaving in droves and Musk is really hurting. Surely you can provide the internal company documents from X proving such.

      Fifth, defamation is not protected by free speech. Musk has a right to sur those who are defaming him and his company.

      Lastly, the following is a poignant example that you are an ardent sheep for the anti-conservatives. You write “slap” lawsuits. Yet you have no idea what they are or what that means. If you did, you would have at least recognized it was an acronym and spelled the acronym correctly. (Reminds me of those who write HIPPA instead of HIPAA). What you are trying to state is the acronym – “SLAPP”. Which stands for Strategic Lawsuit Against Public Participation.
      Had you actually knew and understand what those lawsuits are – instead of just remembering just dribble you were fed – you would have spelled the acronym correctly and used capital letters.

      You have a nice day.

        1. You know by why Google is owned don’t you?
          And you know that results therefore are explicitly biased dont you?

  3. Progressives do not support free speech. Progressives do support democracy. The judge did the entirely predictable thing and found another reason to toss the case. She absolutely did not want to support free speech or democracy with her ruling

    1. The judge did the entirely predictable thing and found another reason to toss the case.

      “another reason”? You are refering to the ruling quoting from the Constitution? Thats not a reason. It is the constitutional outcome required.

  4. After his term is over in January of 2025, Trump can run again in 2028 for a third term because his first two terms will not
    have been consecutive.

  5. Colorado Judge Sarah Wallace

    She received two benefits from her ruling:

    Not being overturned.

    Street cred with the fascist Left.

  6. Democrat voters would cry foul if they weren’t allowed to vote for members of “The Squad”, but they see no problem with not allowing Republican voters to vote for Trump.

    1. If any of the squad were found to have engaged in an insurrection, like Trump was found by Judge Wallace, then they should be disqualified too.

      1. Please don’t fall into the trap set by the judge in this case. Trump was not found to have engaged in insurrection. He was merely defamed by the judge so that she could maintain here leftist cred while avoiding being overruled.

      2. “like Trump was found by Judge Wallace,”

        She has no authority to find someone guilty of a crime. Are you stupid or just ignorant?

        You do know that insurrection is a crime, right???

    2. “Democrat voters would cry foul if they weren’t allowed to vote for members of “The Squad”, but they see no problem with not allowing Republican voters to vote for Trump.”

      I think you meant…
      Democrat voters would cry foul if they weren’t allowed to vote for members of “The Squad”, but they see no problem with not allowing fascist voters to vote for Trump.

  7. I’m sure next week msm will giddily report “the plastic bag found in a locker at the White House is believed to be President Donald Trump’s personal stash. Prosecutor Hornblower in Bumflick county says indictments are likely”. They are never going to stop the persecution of this man until he is in a position to stop them.

    1. “the plastic bag found in a locker at the White House is believed to be President Donald Trump’s personal stash.”

      Well, maybe not his stash. But it’s his fault for not banning all plastic when he was president.

  8. If no conviction of any crime or offense is required to deem someone guilty of insurrection, then who gets to decide this? What implications might such a precedent set for other claimed crimes or offenses? This would seem like a bad precedent to set.

    1. He was not found guilty of insurrection because he was never charged with insurrection. The trial was about the exclusion of him from the ballot. The only finding from the judge’s ruling is that the state cannot exclude Trump from the ballot. The charge of insurrection by the judge is merely defamation on the part of the incompetent, left-wing, cowardly judge.

      1. Check the law, you do not have to be tried or convicted of an insurrection to be excluded from the ballot, If that is inconvenient take it up with the framers of the constitution. I agree that the judge is a coward though, he stated that the chief executive officer of the country does not count as an officer according to the law. Clearly the judge wanted to reprimand the former president but was too afraid of right wing morons to give the reprimand any teeth. So good job guys, your really making our democracy democratic. Before you get your panties all in a bunch, would you consider Biden an officer of the United States for legal purposes if it meant his downfall? But expecting empathetic thinking from the likes of MAGA is obviously too foreign a concept.

    2. Obviously, Democratic officials would be allowed to decide the question. Republican officials would be put in jail if they excluded anyone from the ballot. It would be called an insurrection. It all gets down to who is allowed to pick the words.

    3. If no conviction of any crime or offense is required to deem someone guilty of insurrection, then who gets to decide this?

      That’s easy. Whoever is deciding who goes on the ballot. The local board or elections, or the secretary of state, depending on how that state runs things. The presidency is not an office from which insurrectionists are excluded, so the whole case against Trump collapses right there. But suppose a local board of elections believes that a candidate for congress is ineligible because she participated in what the board believes to have been an insurrection, having previously taken an oath not to. The board would be within its rights to exclude that person from the ballot, and the onus would then be on the person to sue them, arguing that it was not an insurrection, or that she’s covered by the Amnesty Act of 1872. Both are correct arguments, which a court should uphold, but the onus would be on her to make them.)

      1. Section 5 of the 14th amendment does not give the people you mentioned the authority to enforce the provisions of section 3.

        1. Nobody has to be given authority to enforce the disqualification clause. By its own terms it says these people ARE disqualified. Automatically. Simply by having done what the clause says. And it is absolutely the business of whoever puts the ballots together to exclude people who are ineligible. If they can exclude 24-year-olds from a congressional ballot, they can exclude insurrectionists. Or do you think someone needs to be given “authority to enforce” the age requirements too?

          If the clause is not self-executing, then tell me why Congress had to pass the Amnesty of 1874, and the subsequent amnesties. What was the purpose of these amnesties, if nobody had the “authority to enforce” the disqualifications in the first place?

          Trump is eligible for at least four separate reasons, but none of them is the one you claim, nor is one of them that he was not convicted by a jury.

          1. “. . . nor is one of them that he was not convicted by a jury.”

            That is inaccurate.

            14.3 is a trigger clause, i.e., the “then” in an if-then statement. If found guilty of insurrection, then disqualification. There is a good reason why it is a *clause* under 14A. And it is historically relevant that in the Davis case, the government *first* had to prove that he was guilty of insurrection. There was an indictment and a trial scheduled.

          2. 18 USC 2383 is the legislation enacted by Congress to enforce the provision of Section 3, as allowed by Section 5. Period. As of 1948, you have zero argument.

  9. “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State…”

    It is clear the amendment specifically excludes The President and Vice President. It has an unambiguous list of those covered by the Amendment.

    The intent is clear. The People as a whole would be sufficient check and balance on the fitness of he President to serve. The goings on in the states was another matter. Senators were appointed by the States, and Representative stood ONLY before the voters of their districts. ELECTORS too might be malignant to the process, thus excluded from serving.

      1. The Presidency IS a civil “office … under the United States.”

        No, it isn’t. Wherever that term is used in the constitution, it excludes the presidency. Thus, e.g., a person can be both president and a senator at the same time. They’d have to be insane to want to do so, but they could. And the vice president can also be a voting senator, but would probably then not have a casting vote, so it’s not a smart thing to do.

        1. The question is the meaning when the 14th Amendment was adopted, not when the Constitution was first written.

          1. No, it isn’t. The constitution already uses the term. Therefore any further use of the term within the constitution has to mean the same thing. You can’t have the same term meaning different things depending on when specific amendments were made.

  10. “These challengers argue . . .”

    I don’t think that is the meaning of the word “automatic.”

    “. . . the latest jurist to reject the effort to bar former president Donald Trump from the ballot . . .”

    So a court does have to decide whether barring Trump from the ballot is a deserved punishment.

    I don’t think that is the meaning of “self-executing.”

  11. Conservative Judge Luttig (Mike Pence’s legal counsel):
    “The Colorado State District Court, Judge Sarah B. Wallace, held tonight that the former president “engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect [his] speech.” The court also held that he “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means.” The court thus found as both fact and law the preconditions to the former president’s disqualification under Section 3.
    “But then, accepting wholesale the former president’s tortured constitutional arguments, the court held that the Presidency of the United States is not an “office under the United States” and that the former president was not an “officer of the United States” and did not take an oath to “support the Constitution of the United States” in 2016 when he took the presidential oath in Article II, Section 1, Clause 8, to “preserve, protect, and defend the Constitution of the United States.”
    “It is unfathomable as a matter of constitutional interpretation that the Presidency of the United States is not an “office under the United States.” It is even more constitutionally unfathomable, if that’s possible, that the former president did not take an oath “to support the Constitution of the United States” within the meaning of Section 3 when he took took the presidential oath “to preserve, protect, and defend the Constitution of the United States.”
    “The Constitution is not a suicide pact with America’s democracy. Indeed, it is the very contrary in this instance. It is plain that the entire purpose of Section 3, confirmed by its literal text, to disqualify any person who, having taken an oath to support the Constitution, engages in an insurrection or rebellion against the Constitution. The former president did exactly that when he attempted to overturn the 2020 election and remain in office in rebellious violation of the Constitution’s Executive Vesting Clause, which prescribes the four-year term of the presidency.”

    Judge Wallace’s finding that Trump engaged in an insurrection will find its way into other legal cases.

    1. “The Constitution is not a suicide pact with America’s democracy.”

      LOL — Anyone who thinks the USA is, or every has been, a “democracy” at the federal level needs to go back to elementary school and finish their education. Why do democrats and RINOs find the concept of a constitutional republic so hard to understand?

      1. A constitutional republic is a kind of democracy. Maybe you’re the one who needs to go back to school.

        1. The Founders despised democracies, calling them ‘mob rule’ among other despicable names. If you know the Pledge of Allegiance the words tell one quite clearly what form of government we have. . .” and to the Republic for which it stands.” That being said, our Republic does include a few elements of democracy such as the House of Representatives. Overall, though, the U.S. is a Republic.

          1. No, the Founders were concerned about DIRECT democracies and so created the US as a REPRESENTATIVE democracy. A democracy is a country where the power is ultimately held by the people (e.g., not by an autocrat or by an oligarchy). The US is a democracy, whether you can admit it or not.

            1. Osage is correct.

              The word “democracy” does not appear in either the Declaration of Independence or the Constitution. To the extent it is referenced in the Federalist Papers, it is to highlight the weaknesses of democracy.

              They designed a government where the President was to be decided by the Electoral College. The President appointed federal judges and justices. Senators were decided by state government. Only the House was designed so the people’s representatives were decided by popular vote – and even that was highly restricted.

              It’s true the discussion about making the U.S. government more “democratic” began shortly after the Constitution was ratified. But it did not really get steam until around the time of the Civil War. That’s when Marx and Engels began pushing their collectivist ideology which dovetails with “democracy” and Radical Republicans were pushing for voting rights for blacks and women.

              It’s been all downhill ever since. Giving idiots who can not govern their own life the ability to help decide how the country is governed does not lead to “good governance”. It leads to catastrophic failure. The only question is when it all comes apart.

              1. The phrase “freedom of religion” doesn’t appear either. It’s irrelevant whether the word or phrase appears if the concept appears. The US is both a representative democracy and a constitutional federal republic.

          2. The Pledge of Allegiance is a relatively recent invention — put together by a couple of baptist socialist nationalists in the late 19th Century who thought the U.S. needed more nationalistic fervor. I don’t assign it much meaning.

        2. “A constitutional republic is a kind of democracy.”

          “The two great points of difference between a democracy and a republic are: [. . .]” (FP, 10)

          I’ll go with Madison.

          1. You conveniently ignore that he’s talking about a direct democracy: “From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.”

            I’m not surprised that you ignore what undermines your desired belief.

    2. Judge Sarah B. Wallace, held tonight that the former president “engaged in an insurrection on January 6, 2021 through incitement

      That was not the question before the court. The briefs were not written to support or disprove that question. I guess since you consider it a legal ruling, it can be appealed. Is the left really going to appeal the finding?. Hell no. They are starting to understand that chasing these stupid narratives are turning out to be stupid when SCOTUS rules against them, and create controlling SCOTUS case law.

      The world is still awaiting the first charge of insurrection, from the peoples protest on Jan 6th.

      1. It absolutely was a question before the court. The court had to decide whether Trump was disqualified under Section 3 of the 14th Amendment, which explicitly says “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken 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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”


        1. Jeez indeed.

          The briefs submitted spent little to no time proving Trump was guilty of insurrection. This keeps confusing you. Due proccess is a real thing. Cant deny rights without due process.

          1. The judge provides due process, just like a judge would if the person’s age or being a natural born citizen would, or residence requirements for other offices.

            1. Trump never had his day in court, never a chance to take the stand to defend himself. never a chance to meet his accuser, No due process
              Some Con law lawyer should appeal the judges ruling as to insurrection. I’m having a hard time thinking any court would take up such idiocy.

              1. He had a chance to submit his own briefs, just like he would have if the question were instead whether he was a natural born citizen.

                1. He had a chance to submit his own briefs,

                  You know your wrong and just keep lying.

                  The judge is presiding over a civil proceeding. The Judge lacks jurisdiction to convict on a criminal charge. . . Oh wait. . ., There are no criminal charges in front of the Judge.

                  It would be like a judge in a divorce proceeding, saying the wife is guilty of spousal abuse. That might be a mitigating factor in granting the divorce, but the statement in no way carries any weight.

        2. The court did not have to reach any conclusion whatsoever about insurrection since it found that Trump was not subject to the exclusion. The judge did not make a legal finding on the issue because it was irrelevant to the decision. What the judge said is nothing but dogma and defamation.

        3. …or rebellion. The point of the clause is that those who engage against the government in such a manner or provide aid and comfort to those who do can be disqualified. The clause was a not just aimed at former confederate officers. It was aimed at anyone who harbored such sentiments.

          1. The clause was a not just aimed at former confederate officers,

            Yes that was the driving force. Agreed to by 2/3 of the States.

            Further, the legislation passed almost immediately granting amnesty to those confederates, proves that was the purpose

        4. Insurrection and rebellion are crimes, defined in 18 USC 2383. No judge has the authority to “find”, “rule”, “determine”, or “hold” that ANY crime has EVER been committed. Only a jury of citizens has that power.

    3. So, by this logic, when Al Gore attempted to delay indefinitely the certification of Bush’s victory in Florida in 2000, and when some Democrats attempted to prevent the acceptance of Ohio’s electoral votes in 2005, they were attempting to extend the respective terms of Clinton and Bush illegally, amounting to “an insurrection”? Has anyone ever made this argument before? It is not even textually sound, since the Constitution says that the House Speaker becomes President in case of temporary vacancy. This would be an unusual Constitutional situation, but it would not be a repudiation of the Constitution.

    4. “Judge Wallace’s finding that Trump engaged in an insurrection will find its way into other legal cases.” A “finding” must be based on evidence. It is my understanding that the judge’s opinion was based on legal briefs.

    5. “Judge Wallace’s finding that Trump engaged in an insurrection will find its way into other legal cases.”

      Insurrection is a crime under 18 USC 2383. Judge Wallace has no authority to “find” that someone committed that crime. None. Period.

      1. Do you understand why she doesnt have that authority??? Its called due process, and there is none of that here.

        Anyone trying to claim that the authors intended to bypass due process when it comes to something this consequential, is either ignorant, stupid, or completely disingenuous. .

  12. “On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it.” — “While I am a critic of Trump’s speech and actions on that day, …”

    Mentioning that TWICE in one article is overkill on the overkill. I’ve long ago lost count of how many times Turley has reminded his democrat readers that he is one of them. Please STOP, Professor. We ALL know you’re a Michael-Avenatti-loving Trump hater. Anyone that doesn’t know that is not the sort of person that reads, and especially not a supposed legal blog.

    And then there’s THIS gem near the end: “We need to put this insidious legal theory to rest with the finality and clarity of a Supreme Court decision.”

    LOL LOL LOL — If Turley really believes that ANYTHING will “put this insidious legal theory to rest,” I’ve got some old Michael Avenatti campaign literature for him to buy. The words are worthless, of course, but I hear it’s great for starting fires, and has done good service in that area in Portland, Seattle, and other points left on the map.

    Meanwhile, for democrats, a Supreme Court decision opposing “this insidious legal theory” about Trump being guilty of uncharged “insurrection” merely translates into another reason to pack the court with democrat justices until it resembles a country club in downstate New York. Just wait for it. It’s coming as certain as Beethoven’s birthday and Turley’s next 10 reminders to democrats who don’t read his blog or his Fox “News” articles that he opposed Trump’s J6 speech “while he was still giving it.”

    1. Luttig has gone off the deep end with Tribe.

      “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
      ― John Adams,

    2. I was against Trump’s J6 speech Before he gave it.

      You see, Ralph, I was invited by Trump himself to attend the ‘Stop the Steal’ festivities. RSVP. Imagine that: Me protesting for Trump! (as you know, I don’t do protests .. . I’m a guerilla fighter.)

      I did, out of the kindness of my heart, personally intervene and dissuaded some impressionable young gals from going up in a RV (Rec Vehicle) caravan for a BYOB party. I kid you not. They thought the J6 ‘Stop the Steal’ Trump rally would a big party and lots of fun. I told them it was all a TRAP! .. and it was.

      The point is, Ralph, Trump is not the answer to the long, grave threat of Joe Biden’s ilk. And never has been. The truth is, Trump’s a diaper dandy Gordon Gekko ‘greed is good’ wannabe with ingrained childhood trauma issues.

      *btw, Nikki Haley, the new media darling poll dancer in 3″ heels, wants to ban all internet anonymity and anonymous posters like you.

      1. “btw, Nikki Haley, the new media darling poll dancer in 3″ heels, wants to ban all internet anonymity and anonymous posters like you.”

        Actually, I’m only an anonymous poster because Turley BANNED me when I was posting at this trash site years ago under my real name. That was back when Turley was pomoting then-future-convicted multiple felon Michael Avenatti as the greatest thing since canned beer:

        “Turley and Avenatti To Appear At GW Event”

        I’m the guy that posted THIS comment:

        As impressive as the list of Avenatti accomplishments detailed in this promotional advertisement of JT’s are, that list is nothing compared with the remarkable accomplishments Turley failed to mention:

        It amazes me how one article currently up rightfully condemns James Comey, his book, and his book tour for what they are, and at the same time there’s this article, which only provides half of Avenatti’s resume. If Turley had treated the Comey-book article the way Avenatti is treated in this article, we’d all be praising James Comey as the righteous defender of justice that Comey (and virtually nobody else) thinks he is, and Comey’s book would be described as the greatest thing since canned beer.

  13. “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.”

    Professor, this is very true, the security was severely lacking when considering the coverage prior to the certification, but not only that, the intel was so alarming that President Trump had given written authorization in advance to utilize military personnel in the event that the those authorized to approve the deployment of troops could do so quickly.

    What was very strange about the security measures taken for this march was how lax they were in comparison to the first two post election marches. In November, we saw Capitol police lining the entire parade route. Snipers were on rooftops. Plain clothes cops with earpieces were among the crowd. Layers of tall fencing surrounded the Capitol that day, not two rows of bike racks and lines of construction netting as on Jan 6. I wasn’t at the December march, but members of my November group were.

    It seems like such an easy thing to compare historically, then to be able to question those responsible for reasons, but we’ve never been able to do so. Why not? Prior to Jan 23 when control of the House changed parties, the person Speaker Pelosi didn’t allow it, but why haven’t the Republicans pursued these questions?

    It almost seems as though the Republicans might also have a stake in keeping the truth hidden.

    Here’s another question on a related note- the “gallows” constructed on J6 became a worldwide icon of this event, but they were constructed at 6 am that day. Has the Capitol Police ever been questioned on why none if their cops never questioned this odd, unauthorized construction and why it hadn’t been removed in advance of the march?

    Professor, you’re familiar with DC, can anyone construct anything on DC property without a permit? And if they do, what happens?

    1. The person who built the gallows looks like a Fed. Which would answer your other questions. Also, what about that pipe bomber? Is there a reason why the FBI can find anyone who traveled through the DC zip code that day, however briefly, but the pipe bomber has them stymied? Something is rotten in Wrayland.

  14. We have sworn testimony from defendants convicted of violence against the Capitol Police that day – testifying that they thought they were asked by their President to intervene to stop Congress procedurally from certifying Biden as the next President. Not just one defendant, but dozens. Did they all misinterpret the message from Trump the way Jonathan Turley wants? I don’t think so.

    Regardless, Trump admits, no, boasts about running a soft coup during his Ellipse speech. “…and if Mike Pence does the right thing….I become President”. Isn’t that proof enough?….a self-incriminating bloviator telling the world in simple terms of motive and means to block the Constitutional transfer of Presidential power?

    There are certain things that are just obvious to people playing attention. The problem nowadays is that maintaining one’s a priori beliefs takes precedence over how information is processed — discordant facts are ignored. What is obvious to the dispassionate, open-minded observer is simply invisible to the true believer exposed to the exact same input. Facts are now only useful for bias confirmation. Counter-narrative info is easily shoveled aside as irrelevant, trivial, or ill-purposed. The mark of the zealot is picking and choosing among available facts those that advance the cause, or besmirch the opposition. Those that weaken the cause or advantage the opposition — those aren’t facts.
    Such a highly structured ontology is statistically impossible in a complex world, but the world of the zealot is a grossly oversimplified bubble, where all information converges on one conclusion: “I’m right, you’re wrong”.

    1. Not just one defendant, but dozens. Did they all misinterpret the message from Trump

      Well why don’t you give is a link the actual Request from the President, and we can decide for ourselves.

    2. What is obvious to the dispassionate, open-minded observer is simply invisible to the true believer exposed to the exact same input. Facts are now only useful for bias confirmation.

      That was some grade A, 5 star, top-shelf projection. Kind of creepy, in fact.

    3. My conclusion is that you have not read the testimony

      I know that escaping from spin is hard for you

      You say people convicted of violence
      Testified to this
      But few people were convicted of violence
      Absolutely many people testified that they came in a big “conspiracy”
      To attempt to persuade congress not to certify a fraudulent election

      Just as all those with pussy hats did in 2017

      Many of whom threw bricks and started fires

      Yet no one accused Hillary and supporters of insurrection
      Nor did they arrest thousands and attempt to jail them for years because a dozen or so did bad things

      1. “You say people convicted of violence
        Testified to this
        But few people were convicted of violence
        Absolutely many people testified that they came in a big “conspiracy”
        To attempt to persuade congress not to certify a fraudulent election”

        They came because they were claiming trump told them to.

        “The accounts of people who said they were inspired by the president to take part in the melee inside the Capitol vividly show the impact of Trump’s months-long attack on the integrity of the 2020 election and his exhortations to supporters to “fight” the results.
        Some have said they felt called to Washington by Trump and his false message that the election had been stolen, as well as by his efforts to pressure Congress and Vice President Pence to overturn the result.
        But others drew an even more direct link — telling the FBI or news organizations that they headed to the Capitol on what they believed were direct orders from the president issued at a rally that day.”

        Turley and those who are in denial keep forgetting that trump said this in his speech.

        “”We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” he said.”

        People knew what he was talking about, what he was implying. That’s inciting language.

        1. “They came because they were claiming trump told them to.”

          There are professionals that can help those who hear voices.

          Unfortunately for the Left, there aren’t any that can help those who cite voice-hearers as evidence.

    4. You do not even have dozens convicted of actual violence

      It is always interesting listening to left wing nuts make claims about what others think
      Or allegedly said
      Rather than actually cite in context what people actually said or did

      It is called spin
      It is also called lying

      Were you telling the truth about the Clinton collusion hoax ?
      About bidens corrupt dealing with Russian oligarchs
      Because that is what burials is about
      About alleged Russian dis information
      About Covid
      About inflation
      About the economy
      About all these wars biden has triggered

      Why are you to be believed

      Have you apologized for misleading
      Lying to people?

      Why are you to be believed

      1. “Approximately 350 defendants have been charged with assaulting, resisting, or impeding officers or employees, including approximately 110 individuals who have been charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer.”

        “Approximately 484 individuals have pleaded guilty to a variety of federal charges, many of whom faced or will face incarceration at sentencing.
        Approximately 119 have pleaded guilty to felonies. Another 364 have pleaded guilty to misdemeanors.
        A total of 52 of those who have pleaded guilty to felonies have pleaded to federal charges of assaulting law enforcement officers. An additional 22 individuals have pleaded guilty to felony obstruction of law enforcement during a civil disorder. Of these 74 defendants, 41 have now been sentenced to prison terms of up to 90 months.
        Four of those who have pleaded guilty to felonies have pleaded guilty to the federal charge of seditious conspiracy.”

        There was certainly a lot of violence.

        1. Svelaz – in a police state, which DC has become, any number of innocent people can be pressured to plead guilty to anything.

    5. “to intervene to stop Congress procedurally…”

      That means to do things in the established way.

      What is wrong with that? That is how things are supposed to work.

      …And you want to censor others based on what you think the truth is? You don’t even get this right.

      1. “That means to do things in the established way.”

        What is the “established way”? S. Meyer.

        No, it’s not how things are supposed to work. Which shows the level of ignorance you hold.

        Censor? What censoring? They filmed themselves committing crimes.

        1. “What is the “established way”? S. Meyer. No, it’s not how things are supposed to work. “

          Mr. Stupid is back. I defined the word procedurally. You still didn’t buy that dictionary. Do you want things done in an unprocedural way? Arguing with a frog would be more challenging.

          1. “Mr. Stupid is back. I defined the word procedurally. ”

            No you didn’t. You’re making stuff up or you have no idea what you’re talking about.

            What is the established way S. Meyer?

            1. Are you Mr. Stupid’s twin or Mr. Stupid? I defined the word procedurally. If you have an Apple, look up the definition and take note of the definition, “an … established way.”

              I prefer to think you are the Mr. Stupid Svelaz because you are wrong on almost everything. Your twin is as well, but he demonstrates a bit of light, usually getting frustrated, which is notable in his replies. You are too dumb to become frustrated.

              Why, when people explain things to you, they treat you like a child instead of an ignoramus is something I don’t understand. It is a service to you, letting you know how you sound. That knowledge can enable you to develop your brain to become more than a cantaloupe. Such ignorance is self-perpetuating.

        2. No, it’s not how things are supposed to work. Which shows the level of ignorance you hold.

          Congress is charged with counting and certifying the Electoral College votes for President. That final process in choosing the President, allows for Congress to reject any or all Electoral College votes. House Democrats have sought to refuse the EC votes from specific states for decades when a Republican was elected.
          The Constitution provides for this procedure.

          The People marching in mass to the Capital seeking to tell their elected representatives to do EXACTLY what the Constitution provides for, is the very essence of how the process works.

  15. The only thing stopping this judge from barring Trump from the ballot was the clear fact that she would be overruled. By ruling for Trump she was able to defame him from the bench without being overruled. She is a judicial coward as well as being a partisan scumbag.

  16. One needs to read the entire ruling. This judge goes off the deep end with some of her “facts “, statements and conclusions. She needs to be impeached and disbarred.

  17. Calling January 6 an “insurrection” was left wing propaganda. If anything, what became a riot was encouraged by hired agitators out to accomplish this propaganda, just as much as Pelosi and Bowser refusing to employ National Guard and D.C. police when it was recommended. This was a set up from the get go, just as everything they have done to Trump and conservatives since it looked like he might be the one to expose the evil that is our government.

    1. 1. It was an insurrection as the rioters were attempting to stop the peaceful transfer of power.
      2. Neither speaker Pelosi nor mayor Bowser have the authority to call up the DC national guard.
      3. The DC Metropolitan Police department did go to the Capitol on January 6th to support the Capitol police.
      4. January 6th was a set up instigated by Trump.

      Scarfing down the bs propagated by Foxaganda is highly discouraged.

      1. Technically is was an autocoup, an attempted coup attempted by the current president to illegally remain in power.

      2. “Neither speaker Pelosi nor mayor Bowser have the authority to call up the DC national guard.”

        That is a lie by omission. They both rejected the prior authorization of the NG.

      3. Trump offered to provide National Guard troops to defend the Capitol, and his offer was rejected by Pelosi and Bowser.

          1. Idiot. That dishonest “fact check” deliberately and obviously avoids the subject by looking into whether Trump made a “formal request”, or gave an “order”. Obviously he didn’t make a “formal request”, because whom would he request it from? He decides whether to send in the Guard; he doesn’t have to request it from anyone. He offered to order the Guard to deploy, and since Pelosi turned the offer down he didn’t give the order! USA Today doesn’t even bother hiding what it’s doing there.

          2. BabyTrump – Paul Irving, the House Sargeant of Arms, testified before Congress, that he, the Senate Sargeant of Arms, and the Head of the Capitol Police, decided on 1/5/21 to decline an offer from someone to have the assistance of National Guard troops for the next day. You can look it up.

        1. Trump didn’t offer anything. If that were true why didn’t he call them up when they were assaulting the Capitol. It’s his responsibility he’s the commander in chief. He didn’t want the violence to stop.

          1. It was not his responsibility. The Speaker refused his offer. He had no duty to do anything. As soon as he was informed that they wanted the Guard after all, he gave the order to deploy them.

      4. Wally
        1. the protestors were there to petition congress not certify the election.

        2. Please list the steps to call up the NG. Trump wanted to when the BLM thugs showed, but could not. Why was he denied

        3. The DC Police were intentionally left out of the loop concerning the intel about numbers and danger. They were not prepared, because they were not informed

        4. “A setup”. if you mean Trump supported the citizens coming to DC to petition Congress for redress of their grievences, you can use the words “Setup”, it just sounds stupid

  18. Agreed, right decision, wrong reasoning. I thought that Colorado was their best chance for this judicial coup. Time to pack this one up

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