Legal experts warn that Trump-hyped court victory is actually the “very worst decision” he could get

Trump bragged about his Colorado court win but longtime appeals lawyer warns he faces "extreme headwinds"

By Igor Derysh

Senior News Editor

Published November 20, 2023 9:03AM (EST)

Former President Donald Trump speaks to a crowd of supporters at the Fort Dodge Senior High School on November 18, 2023 in Fort Dodge, Iowa. (Jim Vondruska/Getty Images)
Former President Donald Trump speaks to a crowd of supporters at the Fort Dodge Senior High School on November 18, 2023 in Fort Dodge, Iowa. (Jim Vondruska/Getty Images)

A Colorado judge on Friday allowed former President Donald Trump to appear on the state’s presidential ballot despite finding that he engaged in insurrection in the Jan. 6 Capitol riot.

The ruling came in response to a lawsuit seeking to disqualify Trump from the ballot under Section 3 of the 14th Amendment, which bars people who participated in rebellion against the government from holding federal office.

Denver District Judge Sarah B. Wallace in her ruling wrote that Trump “acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence.”

The judge concluded that “Trump incited an insurrection on January 6, 2021 and therefore ‘engaged’ in insurrection.”

But Wallace also determined that Section 3 does not apply to him, writing that the section refers to some offices by name as well as those who are an “officer of the United States,” but does not specifically mention the presidency, according to The Washington Post.

Wallace wrote that the writers of Section 3 “did not intend to include the President as ‘an officer of the United States,’” though she noted that it does technically apply to those who swear an oath to “support” the Constitution. Trump took an oath to “preserve, protect and defend” the Constitution.

Wallace wrote that she did not want to disqualify a candidate “without a clear, unmistakable indication” that it was the intention of those who wrote the amendment.

Despite leaving him on the ballot, Wallace blasted Trump’s “history of courting extremists and endorsing political violence.”

“The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it,” she wrote.

The ruling is expected to be appealed and could wind up in the state Supreme Court and ultimately make its way to the U.S. Supreme Court.

The Minnesota Supreme Court ruled earlier this month that Trump cannot be removed from the primary ballot and a Michigan judge reached a similar decision.

Trump during a rally in Fort Dodge, Iowa on Saturday took a victory lap, claiming that Democrats and the media were "having an absolute meltdown because last night, our campaign won a gigantic court victory in Colorado."

Trump called the lawsuit an “outrageous attempt to disenfranchise millions of voters by getting us thrown off the ballot,” and called Citizens for Responsibility for Ethics in Washington, the watchdog group that brought the case on behalf of Republican and independent voters in the state, a “bunch of losers.”

CREW President Noah Bookbinder vowed to appeal the ruling.

"The court's decision affirms what our clients alleged in this lawsuit: that Donald Trump engaged in insurrection based on his role in January 6th," Bookbinder said in a statement. "We are proud to have brought this historic case and know we are right on the facts and right on the law."

Former acting Solicitor General Neal Katyal pushed back on Trump’s declaration of victory, warning that “as an appeals lawyer,” the headline for the ruling should be “This is the very worst decision Donald Trump could get from the trial court.”

“Because it’s going to go on appeal to the Colorado Supreme Court, perhaps the U.S. Supreme Court and there Trump is going to face extreme headwinds,” Katyal said.

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Katyal noted the difference between Wallace’s “factual finding” that Trump engaged in insurrection and the “legal part” of her ruling that it does not apply to the president. “It’s almost impossible to overturn a trial judge’s factual finding” because they get “massive deference” by the appeals courts but the legal findings can be overturned because “that’s basically a fresh look.”

"And here, this judge factually made devastating findings against Trump,” he said, calling the judge’s exemption of the president a “weak” technicality.”

“The reason for that is that there are other parts of the constitution that say that the president is an office holder of the United States, which is kind of obvious, and the text printed in bold when you flash the 14th Amendment, says it applies to 'any office, civil or military, under the United States, as long as you taken an oath.' And of course, the president does take an oath,” he said. “And it would be an insane reading otherwise — would mean [former Presidents] Jefferson Davis or Robert E. Lee could have run for the presidency in 1868. That could not possibly be the law, and I don't think that will command a majority of the Colorado Supreme Court, or certainly the United States Supreme Court."

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Former U.S. Attorney Harry Litman told MSNBC that the judge’s ruling “had to happen” to set the stage for the Supreme Court to take up the case.

"This is the necessary and real seismic ruling,” he said. “Yes, he engaged — his First Amendment claim is wrong — in an insurrection. This is 95% of what an opinion disqualifying him would look like and the extra 5% is something that a higher court could do, whereas they couldn't do the part that she has now done. They could not adjudicate it on the facts."

Watergate prosecutor Jill Wine-Banks took issue with the argument that the amendment does not apply to the president.

“The argument that he is not an officer, and that there is a difference between his oath and the oath that a senator takes, is a difference without distinction,” she argued. “The difference between ‘protect’ and ‘support’ doesn't make any sense to me. Of course, ‘protect’ is even a higher burden. If the president has to ‘protect’ the constitution, he also has to ‘support’ it."

Wine-Banks argued that that part of the ruling is “wrong on the law.”

"Of course on the facts she is right, and she made a factual finding that he is insurrectionist. And that would bar him if he were an officer,” she said. “And I believe that any higher court will find that it was the intent to bar such a person from holding the office of president. And that he will be barred."

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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