Breaking: Trump Disqualified!

Today's Colorado Supreme Court Decision, and What's Next

A few weeks ago, I shared my analysis of the trial court decision in Colorado that walked right up to the edge of disqualifying Donald Trump from running for President, and then stepped away.

But I pointed out that the trial court did the most important work necessary for Trump to later be disqualified: making factual findings that Trump had indeed engaged in an insurrection as defined under the Constitiuon. As I wrote:

“First, and importantly, the court made long and extensive factual findings to conclude that 1) “the events on and around January 6, 2021, easily satisfy this definition of “insurrection,” and 2) that Trump’s actions and words (and inaction) inciting the January 6 insurrection amounted to “engage[ment] in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.””

Where the Court stepped away was in its conclusion that the presidency, uniquely, is not an office of the United States, which of course led to the odd conclusion that Presidents and Vice Presidents were the only high-level federal officials who could not be disqualified for engaging in the insurrection that Trump did. And that conclusion let Trump off the hook because disqualification only applies to “offices” of the United States.

As I wrote, though, unlike the factual findings (which are owed deference by higher courts), this legal conclusion is reviewed de novo (ie. with no deference) by higher courts.

And in the last few minutes, the Colorado Supreme Court ruled that the lower court’s conclusion that the Presidency is not an “office” of the United States is WRONG.

Specifically, the district court had placed great weight on the fact the term “President” was not specifically enumerated as an “office” in the disqualification clause. But the Supreme Court rejected the conclusion:

“We do not place the same weight the district court did on the fact that the Presidency is not specifically mentioned in Section Three. It seems most likely that the Presidency is not specifically included because it is so evidently an “office.” In fact, no specific office is listed in Section Three; instead, the Section refers to “any office, civil or military.” U.S. Const. amend. XIV, § 3. True, senators, representatives, and presidential electors are listed, but none of these positions is considered an “office” in the Constitution. Instead, senators and representatives are referred to as “members” of their respective bodies.”

The Court then dismisses Trump’s argument that somehow the Presidency is not an office “under the United States”:

“Their claim is that the President and elected members of Congress are the government of the United States, and cannot, therefore, be serving “under the United States.” Id. at amend. XIV, § 3. We cannot accept this interpretation. A conclusion that the Presidency is something other than an office “under” the United States isfundamentally at odds with the idea that all government officials, including the President, serve “we the people.” Id. at pmbl. A more plausible reading of the phrase “under the United States” is that the drafters meant simply to distinguish those holding federal office from those held “under any State.””

The Court then goes further:

“The Constitution refers to the Presidency as an “Office” twenty-five times. E.g., id. at art. I, § 3, cl. 5 (“The Senate shall chuse [sic] their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.” (emphasis added)); id. at art. II, § 1, cl. 5 (providing that “[n]o Person except a natural born Citizen . . . shall be eligible to the Office of President” and “[t]he executive Power shall be vested in a President of the United States of America [who] shall hold his Office during the Term of four Years” (emphases added)). And it refers to an office “under the United States” in several contexts that clearly support the conclusion that the Presidency is such an office.”

The Court therefore concludes: “We conclude, therefore, that the plain language of Section Three, which provides that no disqualified person shall “hold any office, civil or military, under the United States,” includes the office of the Presidency.”

I’ll spare you the details, but the Court goes on to “conclude that ‘officer of the United States,’ as used in Section Three, includes the President.” Also a required step to subject Trump to disqualification.

The Court concludes by summarizing the absurdity of Trump’s argument:

“President Trump asks us to hold that Section Three disqualifies every oath- breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three.”

Finally, having clarified the law regarding the definition of the terms “office” and “officer,” the Court affirms the district court’s conclusion that Trump did indeed engage in an insurrection:

“As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”

So that’s a quick summary of the ruling.

It will no doubt be appealed to the United States Supreme Court, and will move quickly.

My prediction from a distance is that the case will not come down to this textual debate about whether the presidency is an “office.” It will likely turn into a debate about the same “political question doctrine” that led to the Court’s decision in Rucho that it could and should do nothing about partisan gerrymandering. I describe that all HERE.

Stay tuned.