The Colorado Supreme Court considers Trump is ineligible to hold office

In an almost unprecedented decision that could define the future of the United States, the Colorado Supreme Court decided Tuesday that it will not allow Donald Trump to run in the presidential primaries of that western state. The ruling upholds the legal theory that the then Republican president’s involvement in the events leading up to the attack on the Capitol on January 6, 2021, which they qualify as insurrectionist, are sufficient, under the 14th Amendment, to disqualify him as a candidate.

The decision means in practice that Trump’s name cannot be included on Colorado’s Republican primary ballot. The decision can be appealed to the Supreme Court in Washington, which has a conservative super majority of six to three. Three of its justices were also appointed during Trump’s only term in the White House. It is not, however, guaranteed that they will hear the case: they can also decide that it is not within their remit to deal with the matter.

Immediately after learning of the court decision, the Republican’s campaign announced that it would vigorously seek justice before the federal top court. For the time being, the Colorado court has put its ruling on hold through January 4, giving a moratorium to Trump’s lawyers so that they can appeal. Trump lost Colorado in 2016 and 2020, so a ban there would not in itself affect his ability to run as a presidential candidate, but it could set a precedent for similar action against him in more decisive states.

The Constitution does not prohibit a person under investigation for a federal crime from being president; nor does it prohibit this individual from running for president, even if, as is the case here, he is facing 94 charges in four different cases, for his alleged involvement in the attack on the Capitol, for election crimes and for his handling of classified papers. This caveat does not even exist in the Constitution if he ends up in jail.

But Section 3 of the 14th Amendment does provide an exception, known as the “disqualification clause,” which states: “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, 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.” The text also warns that Congress can lift that veto if it meets a two-thirds majority.

Approved in 1868, this was one of the most influential amendments in the history of U.S. democracy and it served to grant citizenship to all persons “born or naturalized in the United States,” including those who had been enslaved, and to guarantee the equality of all citizens before the law. The third section was specifically designed to prevent the Confederate rebels, defeated in the Civil War (1861-1865), from reoffending. It has been applied very rarely, only twice since 1919.

The legal theory behind the Colorado decision began to take hold in the summer, following the dissemination of a 126-page academic paper for the University of Pennsylvania Law Review. Authored by William Baude and Michael Stokes Paulsen, two renowned conservative academics, it argued that the disqualification clause is far from being a 19th-century anachronism and fits with Trump’s actions, particularly his haranguing of the mob that rallied on January 6 in Washington and eventually stormed the Capitol and his pressure on his Vice President Mike Pence to disrupt the transfer of power to Joe Biden, the rightful winner of the November 2020 election.

The 14th Amendment theory, a kind of nuclear button for those who fear the consequences for democracy of a Trump return to power, has been used to open similar cases, dismissed on procedural grounds, in New Hampshire and Minnesota. In Michigan, a magistrate threw out another similar lawsuit on the grounds that he saw political motivations in that disqualification attempt. His decision is being appealed to the state Supreme Court.

“We do not reach these conclusions lightly,” reads the majority opinion of the Colorado Supreme Court. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

Sarah Wallace, a lower circuit judge, ruled last month in the Denver district that the amendment did not apply in Trump’s case. However, her decision did conclude that Trump participated in an insurrection on January 6, 2021, which he incited. And she was not sparing in her reprimand, saying he knew that “such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder.”

The third clause speaks of senators and congressmen, but does not specifically allude to the office of president, Wallace said in her argument. “While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.”

The lawsuit had been filed by a Washington organization called Citizens for Responsibility and Ethics (CREW), with experience in confronting Trump in court. In an interview with EL PAÍS last September, Donald Sherman, its vice president, declared: “There is overwhelming evidence that the clause can be triggered in this case. The concept is simple to understand, even if the litigation is not going to be.” CREW succeeded in getting the clause enforced last year to bar Cuoy Griffin, founder of the Cowboys for Trump group, from holding public office in New Mexico.

The former president leads by a significant margin all polls to be nominated as the Republican Party’s candidate for the November 2024 election. A few weeks before the beginning of the process, with the Iowa caucuses in mid-January as the starting signal, only a decision like the one announced this Tuesday in Colorado, a real bombshell for American politics, seems capable of stopping at this point his path to the White House, where the current president, Joe Biden, who also aspires to repeat as candidate, awaits him on the Democratic side.

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