In a now formal, but not unexpected, decision in Colorado yet another local county judge has issued a somewhat convoluted, but yet clear, decision that the 14th Amendment, specifically section 3, cannot be used by a handful of common citizens to sway the election of a President Of The United States.

The decision is here.

How this garbage got this far is nuts. But Norm Eisen and CREW have again been put in their place.

112 replies
  1. Michael Carr says:

    Classifying this as ‘garbage’ is why Trump gets away with almost everything. Because people triangulate everything to the nth degree to extend him protections not afforded to anyone else. It is a pathology.

    • David F. Snyder says:

      Au contraire, filing this case and losing it helped Trump far more than calling it the garbage that it turned out to be. Trump would never have won Colorado, at least not before this case was filed. Just watch, he will use it as further “evidence” that Biden/Biden is out to get him and a nonzero percentage of right-leaning independents will buy it. Nope, this was a plain dumbass move that never had a chance (because the judge had to defend our rights too).

  2. c-i-v-i-l says:

    Not everyone thinks the suit was “garbage.” Judge Luttig, for example, thinks the judge got the ruling wrong:
    “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.”

    It would be one thing if Judge Wallace had found that Trump hadn’t engaged in an insurrection. But finding that the President is not an officer and that the President’s oath is not an oath of support is harder to buy.

    • bmaz says:

      The same doddering Mike Luttig who “testified” to the J6 Committee? That guy? I know he suddenly became the hero of a lot of people that were never aware of his history previously, but spare me.

      • c-i-v-i-l says:

        Part of Luttig’s pre-J6-Committee history is that he was one of the people who convinced Pence that Pence’s role on Jan. 6 was only ceremonial.

        • bmaz says:

          Yes. Sure. Focus on that and not Luttig’s very long “pre-J6” history is of bad very conservatism. How convenient.

            • bmaz says:

              Or maybe even this dumbass local judge in Colorado could not deliver your wet dream, and you should “focus” on that.

              • c-i-v-i-l says:

                Do you agree with Wallace that the President is not an officer of the US and doesn’t take an oath to support the Constitution?

                • Ravenclaw says:

                  The wording of the presidential oath is different than the oaths taken by nearly any other officer or elected official and does not include the word “support.” Had Trump ever served the nation in any other capacity, he would have taken the oath to support the constitution, but as we know, he never did so. It’s a narrow interpretation of the amendment, but that’s what judges often do, right?

                  • c-i-v-i-l says:

                    The wording of the 14th Amendment doesn’t put the word “support” in quotation marks, so it doesn’t require that the oath include the word “support,” only that the person had “taken an oath, … as an officer of the United States, … to support the Constitution” (i.e., the concept of support, not the literal word “support”). The Presidential oath certainly requires him to support the Constitution.

                    • SteveBev says:

                      The specific terms of the oaths taken by most of the persons to whom 14th Amendment s3 undoubtedly applies, are not particularised in the constitution – therefore the wording ‘support’ in s3 is intended to cover the broad range of oaths the particular terms of which are specified elsewhere (federal statute, state statute, state constitution, federal constitution)
                      The comparison and parsing of the oaths specified in the US constitution is therefore too narrow a focus, IMHO, because the purpose of s3 is to capture all those who have taken an oath of office in the general form of allegiance to the US Constitution, and then broke it.

                  • Harry Eagar says:

                    For the first 100 years or so of the Republic, it was common to refer to the president as the Chief Magistrate. It has gone out of fashion, but if any magistrate is an officer, then the chief must be as well. unless Pobedonotsov is now our leading constitutional intellectual.

      • P’villain says:

        I don’t agree Luttig was “doddering.” I do agree that he could be president of Bob & Ray’s Slow……….. Talkers………. of…………… America. And yeah, he has a long record of being a conservative shithead, but it’s never too late to see the light.

        • Harry Eagar says:

          He had a stroke, which did not impair his mental ability. He seems to be making good progress in recovering his motor skills.

          In any event, Luttig’s position was carefully argued in detail, Bmaz never offers any arguments.

          • bmaz says:

            You are lying. I noted in real time that Luttig did not look right, nor consistent with what I had seen in person previously, during his J6 testimony.

            • c-i-v-i-l says:

              Calling someone a liar means that they’re knowingly telling a falsehood with intent to deceive. Without evidence, why assume that rather than the person only being mistaken? You don’t actually know and can simply say “that’s false.” Luttig didn’t have a stroke. He has written about his purposeful slowing of his speech during his J6 Committee testimony (e.g.,, and you can hear him speaking normally in subsequent interviews. You may not agree that his slowed speech was wise, but it was done by choice, not because he’s “doddering.”

            • Rayne says:

              Let’s not swag “age related degeneration” which could imply cognitive deficits when the person in question may have ample unaffected cognitive powers but aphasia related to speech processing and output.

      • Sean Farley says:

        I couldn’t care less about Luttig’s past. What concerns me this very day is how to kill Trump’s attempts to kill this democracy so many have died for. This turd is not worthy of a dogcatcher’s position (with apologies to those who catch dogs).
        Pick nits elsewhere, bmaz.
        It’s well past time to terminate Trump’s efforts to cruise to victory over simple weak spam.
        Wake up, please. This man must be stopped at this late hour as if against a wall!.

    • wasD4v1d says:

      Due respect to Luttig, but not due here. The 14th Amendment does not preclude being on a ballot, or even being elected. It prevents one determined to be a secessionist / seditionist from being allowed to take office. (This was intended primarily for Congressional winners – winners! – of their elections, who despite being seditious nevertheless were eligible to *run*, just not to take office.)

      • fatvegan000 says:

        So now that the judge found Trump guilty of insurrection, if he gets elected in 2024 – but according to the constitution can’t be allowed to take office – then John Roberts should refuse to swear him in?

        Or is insurrection different than sedition?

        • bmaz says:

          You might start off with the fact there was no “finding of guilt” because it was a common civil case in a local court.

        • wasD4v1d says:

          Trump was not found guilty – that would require due process: a charge, a trial, a conviction. Absolutely none of that has taken place, not even a charge of sedition. I’m with bmaz on this one – it’s just another dancing bears act in the Trump derangement circus.

  3. Scott_in_MI says:

    This decision finds that Trump “engaged in insurrection” per article 3 of the 14A, but interprets that article as not applying to the office of the president. That seems to this non-lawyer like something of a weak reed on which to rest, and given your oft-proclaimed position that criminal due process ought to be a prerequisite for invoking this article, I’m a little surprised to see you endorsing it with so little critical commentary.

  4. Rethfernhim says:

    Leaving the decision to remove or disallow a candidate from the ballot without a fair trial to determine guilt has always struck me as open to abuse. It might get Trump off a few ballots this year, but such a precedent could provide legal cover for a swing state Sec of State or judge to keep Biden off the ballot based on allegations which might not hold up were it subject to rules of evidence, etc.

    A fair trial is foundational stuff in our system, IMHO.

    • Scott_in_MI says:

      Impeached federal officers don’t get “a fair trial.” They get a political process. How is this different?

      • bmaz says:

        Because there was no conviction. What about that do you not understand? You think the mere allegation is a conviction?

        • Scott_in_MI says:

          I think that you and others keep trying to apply criminal-trial standards to something that is not obviously a criminal issue. No one is at risk of life, limb, or property in this matter, any more than during an impeachment. It’s unclear to me why you think a criminal conviction is required here, when it’s plainly not in an impeachment proceeding.

          • bmaz says:

            Criminal issue? It is a Constitutional issue. Why would that not require due process? “No one is at risk of life, limb, or property in this matter”???? How blithe of you. What other Constitutional rights are you indifferent and/or oblivious to?

            • Scott_in_MI says:

              As I said: impeachment doesn’t require criminal due process, and it’s not immediately clear to me why this question is fundamentally different. Your indignation and cheap shots don’t constitute an argument.

              • bmaz says:

                Yes, it kind of does. Impeachment by the House and subsequent conviction by the Senate. After a trial. Your indignation and cheap shots don’t constitute an argument.

                • Scott_in_MI says:

                  Impeachment, as has been observed ad nauseam, is a political process, not a criminal trial, and does not proceed by criminal-trial rules, no matter how much it looks like a criminal trial superficially. Moreover, the Constitution specifies a Senate trial in cases of impeachment; the 14A does not specify an enforcement mechanism for its disqualification of insurrectionists, which suggests that it should proceed through civil suit, the same way that other alleged violations of constitutional rights are adjudicated.

                  • Alan Charbonneau says:

                    “…the 14A does not specify an enforcement mechanism for its disqualification of insurrectionists…”

                    Ergo, fuck due process? I think this idea is shit and bmaz is right, a conviction for the crime of causing an insurrection should be the standard, impeachment being “a political process” notwithstanding.

                    Were you high when you wrote that or do you simply see no danger to civil liberties?

                    • Scott_in_MI says:

                      Trump’s right to be on the ballot is getting the same due process that any other citizen’s alleged violation of a constitutional right would get: a hearing in civil court. I don’t agree with bmaz (or you, apparently) that a criminal conviction should be a prerequisite to a 14A sec 3 exclusion; reading that as a “fuck due process” argument is intellectually lazy.

                    • bmaz says:

                      No. Of course not. You would not understand “due process” if it bit you in the ass. And I do not care what you “agree” with.

            • scroogemcduck says:

              Surely the Court is the due process? It’s not like his candidacy had been rejected by elections officials in any of the States.

            • Harry Eagar says:

              trump obviously is not at risk of life or limb. So you are arguing his property is at risk. Which property?

    • ApacheTrout says:

      What does a fair trial have to do with this? It’s about eligibility, IMO similar to someone challenging the residency requirement for someone running for any office.

      • HarryNLeadbelly says:

        Absolutely. Luttig’s point that the Amendment is “self-executing” contextualizes the proper strategy: TFG engaged in insurrection for all to see. It was self-evident. So he should be routinely kept off ballots just as an underage candidate would be. If the underage candidate wants to prove in court that their birth certificate was incorrect, that’s up to them. It’s their burden.

        Which makes perfect sense because the right to run for office is far from unlimited. The solution here is simply administrative. To compare it to a criminal trial is way off the mark. TFG isn’t at risk of losing his liberty over this case. He’s just another unqualified shmuck.

    • SatanicPanic says:

      Even if we throw everything else aside and look only at our immediate advantage- Trump wasn’t going to win Colorado anyway. What’s the point without red state buy in?

    • Steve_R_ says:

      I don’t understand. The absence of judicial review that serves as the predicate for your concern is exactly what didn’t happen here.

      To suggest this inquiry is “garbage” reflects a bias born of evaluating every question through the filter of criminal law that reflects neither common sense nor reality.

      Let’s assume a fully adjudicated determination established there was a 90% chance someone was an agent of a hostile foreign power. No criminal punishment would be levied because the individual has not been proven guilty beyond a reasonable doubt. But the conclusion that someone should not be subject to criminal punishment in no way suggests there should not be other consequences.

      I guess we could trust the democratic process to determine whether the likely foreign agent should serve in a leadership role. But that assumes that the voting population has full access to all information required to fully engage in the deliberative process.

      We can agree that utilizing the judicial process to render an individual ineligible for public office presents a potential for abuse. Can we also agree that the inability to do so presents a potential for disaster?

      Regardless, certainly nowhere close to “garbage.”

  5. ApacheTrout says:

    The ability of citizens to argue their case based on their interpretation of an imperfect law is admirable part of our Constitution.

  6. Anomalous Cowherd says:

    IANAL, plus I’m old, but I thought this case was about the ballot for the Republican primary (which does not elect a president, but instead only selects the candidate whom the Republicans back in the real election in November.) The courts are understandably loathe to meddle in intra-party horse trading since it’s not determinative.

    • Ravenclaw says:

      Good point, I think. Primary elections are not elections to public office at all. They merely establish who will be endorsed by a political club. The 14th amendment doesn’t say you can’t run for office or apply for a job, only that you can’t be sworn in or hired.

      • HarryNLeadbelly says:

        True, but this suit was brought by Republicans fighting for their right to choose a non-insurrectionist candidate who won’t get thrown off the ballot in the general. So Judge Wallace preferred a different excuse to delay this fight from culminating too early (in the wrong venue).

        She was strategic in her ruling, I have to suppose; she’s not an insurrection denier, she knows trump pushed the insurrection, so logically she wouldn’t go out of her way to keep him on the ballot with such a flimsy reading of the word “support.” My guess is she believes her ruling has the best chance of leading to his eventually being barred from the GE ballot.

  7. Raven Eye says:

    This decision must be quite a blow to the Panicpublicans who, cowering inside their safe rooms, were desperately hoping that someone else would do the dirty work and get blamed for helping to keep Trump off the Republican ticket in 2024.

    This “plan”, as bmaz so gently suggests, was AFU from the outset and, in the unlikely event it had succeeded, would have created a chaotic and dangerous behavioral precedent across the electoral landscape…Not that that landscape isn’t already pretty jacked-up.

    For years, legitimate Republicans allowed their desire for power overrule any strategic vision for party and nation. I doubt that the current GOP has the capability to excrete enough legitimate individuals with sufficient courage to create an anti-MAGA/anti-Trump movement that could make any difference within their party.

    It’s looking like 2024 could be an awful thing to behold.

  8. notKeith says:

    A writer on Daily Kos (Dyspep Tex) suggests that this ruling is actually brilliant. His reasoning is that the key finding here, is that Trump is guilty of insurrection. Either side would appeal the ruling, whatever it was. And he adds:
    “When a case goes up on a (sic) appeal, the further you get from the trier of fact the MORE deference appellate courts will pay to factual determinations. However, the higher up you get, the LESS deference is paid to the trial judge’s interpretation of the law.”
    I too am not a lawyer – is a “finding of fact” specifically, different in weight, than interpreting laws regarding the finding of fact?

    • Gil Bagnell says:

      The distinction between finding of facts and questions of law arises in the trial process where, typically, a jury will determine facts and the judge will set forth the law. The judge doe this by giving instructions to the jury, by defining the questions and applicable law. The judge also makes may legal decisions along the way, such as whether to admit certain evidence, or deciding that under the facts admitted by both parties, or alleged by one without opposition, a certain result is called for. When the case is appealed, the jury is no longer present, so the appellate court, with some exceptions, has to accept the findings of the jury. It can only reverse based on the judge’s decisions, such as allowing in certain evidence, giving the jury the wrong instructions, or failing to rule “as a matter of law” on undisputed facts.
      This gets a little fuzzy with a bench trial. There the judge plays the role of the jury as fact finder as well. Decisions in such cases are usually divided into findings of facts and rulings of law to make clear which part is which. On appeal, the assumption is that the judge who heard the witnesses was in the best position to determine facts. Depending on the type of case and the rules in the particular jurisdiction, the appellate court is often required to accept the lower court’s findings of facts. But that is not always the case. Sometimes on appeal the findings of fact are given deference, but are not binding in a bench trial. In general, however, findings of fact from a lower court tend to be binding on an appeals court.

  9. vinniegambone says:

    Googling ” legal definition of OFFICE, the response coming back clearly described the presidency as the occupant of an office , legally conferred to him by a soveirn state, in this case a democracy.

    ” … and I’m going to walk down with you … ”

    I know, I know , wikipedia is not the constitution , but look of legal definition of office.
    WTF , he works in the oval office.. I hope they put him in a oval cell…something like where they were keeping Hanibal Lecter just prior to his escape.

  10. vinniegambone says:

    So if Trump is found guilty in Chutkan,s court he THEN won’t be allowed on any ballot ? Predicting Trump will not be able to refrain from speaking on this decision and will blurt out additional incriminating statements.
    ” See, even this judge in Colorado says I am not prohibited from running for president just because I once LED an insurrection to keep the office this judge says I am not an officer of.. “

    • notKeith says:

      No, even if found guilty of a felony, that doesn’t prohibit someone from running for, or becoming president. It is likely that Trump wouldn’t be able to vote for himself as a convicted felon.

      • P’villain says:

        I think the point is that a felony conviction in that case might constitute a sufficient showing of “insurrection” to meet the 14th Amendment’s requirements and thus justify either administrative or legal action at that point to keep his name off the ballot.

              • dopefish says:

                You didn’t answer his question, but thats alright as the answer is clearly “no”.

                The part people don’t understand is your belief that “due process” only comes from criminal courts. There’s a lot of things that are given “due process” elsewhere (in Congress or civil courts) and IMO you haven’t made a convincing argument that keeping someone off the ballot via 14A needs a criminal conviction. Keep slinging insults if it makes you feel better, but a well-reasoned argument from you would stand a much better chance of changing anyone’s mind.

      • SteveBev says:

        The constitutional standard in 14As3 is “engage in insurrection”

        It doesn’t specify a particular crime but encompasses a range of crimes.

        In ordinary criminal law particular fact patterns may be charged in a variety of ways because statutory offences overlap. It is a matter of prosecutorial discretion to choose the charges on which to indict, as best cover the criminality and culpability revealed by the evidence.

        The conspiracy charges against Trump and the factual allegations underlying them amply covers conduct which amounts to engaging in insurrection – and Trump is fully on notice by the terms of the indictment that conduct constituting engagement in insurrection is at issue in the Trial, not least because he has acknowledged that by arguing double jeopardy supposedly arising from the impeachment trial.

        Without wishing to put words into Bmaz mouth, I take his arguments to mean that 14A s3 constitutes a constitutional disqualification contingent on allegedly criminal conduct, ie a penal restriction on civil rights akin to the restrictions on civil rights of persons convicted of felonies.

        There is merit in this view from the point of view of protection of civil liberties – higher standards of due process in criminal trials being one consequence.

        However, the class of persons to which 14A s3 applies covers both state and federal officers , elected and appointed – thus implicating multiple jurisdictions, adding complexity to the question of appropriate decision making fora.

        The removal of disability by Congress clause, adds another layer of complexity.

        And if the disability is truly a penalty contingent on criminal conviction, the it would be subject to pardon powers

  11. Rugger_9 says:

    I’m with bmaz on this one, because of one very key point: there is still no finding of fact that Defendant-1 engaged in an insurrection. No jury, no bench trial, no non-political forum has said this (yet), and the earliest opportunity I see is in the DC trial presided over by Judge Chutkan.

    Allegations are not facts, we see it every day in the RWNM ad nauseum. Let’s make sure that a fact finding is the standard going forward because I have no doubt the RWNM and GOP will go after any current and future D President in the same way.

    • boatgeek says:

      Trump doesn’t have to have engaged in insurrection to be disqualified under 14A. 14A disqualifies for proving aid and comfort to an insurrection as well. J6 footage certainly seems to support an “aid and comfort” determination, though I recognize a need for formal court proceedings.

      As for needing a criminal trial, that wasn’t required immediately post Civil War, when a number of Confederate soldiers were disqualified. Is there a reason a criminal trial would be required now? Wouldn’t a civil trial with a jury and a standard of proof beyond a reasonable doubt be adequate due process?

      • bmaz says:

        What due process would you afford to take away Constitutional rights? Just blithely spew it on the internet?

        • sohelpmedog says:

          Due process is met if there is notice, an opportunity to be heard and a fair tribunal for making the decision. The standard of proof required for a decision varies according to the nature of the proceeding. Yes, in criminal proceedings beyond a reasonable doubt is the required standard of proof. But there are many other proceedings where constitutional rights may be lost based on a determination using a lesser standard. Indeed most determinations which affect loss of rights are based on lesser standards than that necessary for a criminal conviction. As just a few examples, one can lose their property, their parental rights, their license to practice a profession without being criminally convicted. The fact that the conduct resulting in the loss of rights may also be criminal does not mean that a conviction is necessary. Of course what’s spewed on the internet isn’t proof nor are conclusions of the J6 Committee, but what is the basis for saying disqualification to run for or hold federal office because of participating in insurrection requires a criminal conviction? There may be questions concerning the use of the 14th Amendment, here, but whether or not a criminal conviction is required does not appear to be one of them.

          • bmaz says:

            Thanks. I understand due process just fine. And, no, none of your “examples” should ever occur without it. But, hey some FedSoc plants in Colorado ought stand and deliver such bullshit. Good plan.

            • sohelpmedog says:

              Not my argument. There was no implication that you don’t understand due process. You’re a criminal lawyer; I’m sure you do.
              I simply stated that in this matter there is no support for your proposition that the due process that is due under the 14th Amendment is a criminal conviction. If that is not your position – that a criminal conviction is required for 14A (3) disqualification, please say so. If it is your position, please support it.

        • brucefan says:

          Can we agree that “more Due Process” is required to take away a liberty interest (put you in jail) than to take away a property interest in a currently held job? And even less Due Process is required (if any) to take away a property interest in a job you have applied for?

          Surely you’re not arguing a job applicant is entitled to the same Due Process as a defendant in a felony case?

          Not all “Constitutional rights” are of the same magnitude. I’ll say it: taking away Trump’s right to apply to be our next President requires less Due Process than putting him in jail for his conspiracy to overturn the 2020 election.

          That said, he got plenty of process in Colorado. Read the judge’s findings of fact and say with a straight face this order will help Trump in Colorado.

          • bmaz says:

            Yes, yes I am. To take away constitutional rights ought require more. Guess you are fine with taking of Constitutional rights via the internet is all well and good. Did you agree with Kelo too?

          • P’villain says:

            Besides considering the magnitude of the right at stake, determining the amount of process that is due should also take into account the reason for the deprivation. Insurrection is a serious charge and as such should be subject to much closer scrutiny than, say, being underage or failing to meet residency requirements.

            • dopefish says:

              Being underage or failing to meet a residency requirement are also pretty black-or-white issues where facts will clearly show someone is or isn’t eligible.

              In contrast, this 14A issue is much more subjective, so it makes sense that it might require “more due process” in some fashion. But I still don’t see why it can’t be litigated in civil courts first and then appealed all the way up to the Supreme Court.

              That seems to be what is likely to happen here; I understand bmaz doesn’t like this process for some reason, but its hard to believe it doesn’t constitute “due process”.

              • P’villain says:

                So it’s OK for “insurrection” to be determined by a preponderance of the evidence? All the civil appeals in the world wouldn’t change that.

                BTW, determining legal residency is anything but a black and white issue.

                • Rugger_9 says:

                  Especially for persons with many abodes. Defendant-1 for his part spends significant time in FL and NJ but IIRC he’s claiming to be a FL resident.

                  In a hypothetical, consider the case where he decides he wants a FL Veep, but under the 12th Amendment the FL Electoral College votes can’t be assigned to the GOP because of the beginning phrase ‘The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;…’ so this is not a trivial issue.

        • boatgeek says:

          Well, let’s look back at history at the reasons and manner of people being denied the right to take office on account of supporting the Confederacy. From a few selections here:

          Kenneth Worthy, 1869. Barred from assuming office by a county clerk. Filed suit to challenge that decision and lost.

          William Tate, 1869. Same as above, except that he was barred by a judge, apparently without a trial.

          Neither of them was convicted of a crime. Both were barred from public office before hearings in court. Both of those decisions were upheld in court. If that standard of due process was acceptable in the era of the passage of the 14th Amendment, what about the amendment and its interpretation has changed in the intervening century and a half?

          Also, please do not put words in my mouth. Did I say that one should take away Constitutional rights based on someone spewing on the Internet? Or are “formal court proceedings” just spewing on the Internet now?

            • boatgeek says:

              Perhaps a little less pounding the table and a little more reading for understanding would help you. I am Some Dude on the Internet and I do think that Trump could be removed from the ballot on 14A grounds, for either participating in or giving aid and comfort to an insurrection. I also think that there is ample evidence of participation and aid and comfort in the public record. But I also recognize that Some Dude on the Internet (sleazy or not) doesn’t get to decide that, which is why I said a court proceeding is necessary. Is that clear enough?

              So now that that’s out of the way, maybe you could address the legal and historical issues I brought up. Why is a court proceeding not due process if both sides can present their case? Why is this case different from the 19th century cases cited above?

              Maybe if you get past freshman year insults, you might actually convince me.

              • bmaz says:

                Because a local county court, with staged plaintiffs, in Denver Colorado, should not determine who can, and cannot, be President of the United States. If you cannot grok that, you are hopeless. So pound that on your proverbial “table”. Where I live, there are nearly 100 judges with as good or better credentials, which one of them would you want to decide who can be President?

                • boatgeek says:

                  Well, it’s nice that we’ve graduated from juvenile sexist ad hominem insults to just ad hominem insults. That’s a start at least.

                  Let’s correct one item of the record. Judge Wallace is not a judge of a “local county court.” She’s a judge on Colorado’s 2nd Judicial District. As far as I can tell, that’s a state court, though it appears on only encompass Denver County. Still, facts matter, right?

                  But on to the meat of your argument. As far as I am aware, you have to start the lawsuit in the lowest court. It’s not like you can file direct to SCOTUS without stopping in a lower court. So of course the case is first heard in a small state court. And Trump tried to get it moved to a federal court and the federal court denied the motion. So at least as far as the legal system appears to be concerned, Judge Wallace’s courtroom was the right place to try this case. There were several motions to dismiss (including for lack of standing), which were all rejected. On top of all of that, the court granted Trump’s motion to intervene in the case. What I’m getting at here is that both Trump and the Colorado Republican Party had plenty of time and opportunity to engage in this case and exercise their right to due process. They were heard and heard and heard. And despite you claiming that the plaintiffs were “staged,” the court determined that they had standing.

                  As far as a court deciding who can and can’t hold office based on 14A, what would you rather have? Minor elected officials refusing to seat people who just won their election, like int he historical cases I noted above? Because that’s sure not open to abuse. State court, followed no doubt by state appeals court, state supreme court, and (likely) SCOTUS sure seems like a better option than that. And maybe along the way, we can get a determination about what grounds are needed to disqualify someone under 14A, since there doesn’t seem like there’s a lot of clarity on that at the moment.

                  • bmaz says:

                    Ad hominem? Really? You are awfully mouthy for a new commenter. So, let us correct the record, as you so plaintively claim to want to do:

                    1) Yes, “Judge Wallace” is indeed a local county court judge. County courts are considered “state courts”. Why? Because they are not federal courts.

                    2) No, you could file an action in an actual federal court. Not some junk local court. Saying the alternative is straight to SCOTUS is dumb.

                    3) What I would “rather have” is a focused determinative action in a federal court not ginned up by Norm Eisen and CREW.

                    • dopefish says:

                      Why would a federal court have jurisdiction here? I thought elections were run by the states, and its the states that decide who is and isn’t on the ballot in those elections?

                      Please, explain briefly how your preferred scenario would play out. What would Norm et al file in a federal court, and why would they have jurisdiction over it?

                      [Edit: or you mean, the Norm/CREW stuff is premature and there should first be some kind of federal conviction of Trump for crimes that also constitute insurrection, and only then it would be proper for states to keep him off the ballot?]

                    • bmaz says:

                      Because national elections, especially the Presidency, should never be the sole province of individual partisan states. No, I have long thought Eisen and CREW were full of shit.

                • Kenster42 says:

                  Hear, hear indeed. For all of you going hammer and tong at Bmaz, don’t you get it? Trust me, everyone on Planet Earth that reads this site knows that the vast majority of the commenters hate Trump with the heat of a thousand suns. Check. Got it. But for goodness’ sake, don’t let that blind you to what’s happening here – do we really want local judges to have the power, without true constitutional due process, to determine whether or not a candidate can run for President or not?

                  This is yet another Pandora’s box that many folks seem blithely comfortable opening. Like packing the court. Like demolishing the filibuster. People want this stuff but don’t seem to be looking farther than the end of their collective noses. What happens with all these things when the Republicans win again? They’re going to walk right through that door that was just opened for them.
                  There should be a proper process to deny someone the ability to run for President and what happened in Colorado ain’t it.

                  • SteveBev says:

                    The counter argument is that the current wave of litigation regarding 14A s3 are just attempted entry points into judicial processes, where the correct means of invoking the provision is obscure.

                    The matter seems destined for SCOTUS should any State Supreme Court rule that Trump is disqualified (and perhaps they might accept the case of a losing petitioner)

                    This will provide the highest court in the land with the opportunity to consider not just the application of the provision, but also the constitutionality of the process and procedures for determining how and when and to whom the provision are to be applied.

                    Aren’t these the sort of questions SCOTUS exists to resolve?

                    • Kenster42 says:

                      I 100% agree with you, and I don’t really think this is a counterargument, in the sense that I think the people saying that the decision is a travesty are wrong, so ultimately it is good and correct that this get elevated through the appeals process to SCOTUS.

                      I fully expect SCOTUS to concur that Trump can stay on the ballot, which will then prompt all the Trump / Republican boo birds here and everywhere to start complaining about how the SCOTUS is now hopelessly biased and we should pack the court so the liberals have a majority vote again.

                    • bmaz says:

                      I also agree. Am fine with it getting to SCOTUS, it should. Not positive they want it, but if it is to be, make sure there is a sane and proper record, preferably from a federal court. For all the ballyhooing of it, Colorado was not even close.

  12. David F. Snyder says:

    Beware the fishermen
    Who’re casting out their line
    Into a dried up riverbed —
    But don’t try to tell them
    ‘Cause they won’t believe you.
    Throw some bread
    To the ducks instead,
    It’s easier that way

    — Tony Banks (lyric fragment (paraphrased) from Heathaze on the Genesis album “Duke”)

    The real cost to this dry-river fishing expedition is Trump will get more votes, in Colorado and nationwide.

    • ButteredToast says:

      Eh, someone who says they’ll vote for Trump because of a failed attempt to keep him off the Colorado GOP primary ballot is someone who’d just find another excuse to vote for him if this had never happened. If this succeeded, I agree it could backfire in other states. But it probably won’t succeed—anywhere.

  13. zscoreUSA says:

    Great to see you put your experience and expertise into an article.

    Why not go further and articulate in the article why that suit is garbage? You could educate more that way.

    • wasD4v1d says:

      I can’t speak for bmaz, but I can note that Trump faces 91 charges, not one of which is sedition or seditious conspiracy. Which means he has not been tried and convicted of this in particular – he hasn’t been found guilty of a federal felony yet, either. Until the courts produce a conviction, since Congress couldn’t, this is going to have to be decided by the voters – who will see his name on the ballot. My 2c.

      ps an opinion rendered to a charge not brought would qualify in my mind as a political or media stunt, the precise legal term for which is ‘garbage’.

      • Yogarhythms says:

        Bmaz, WASD4V1D,
        IANAL. Took me a while. Thanks for this thread. Absolutely agree with eponymous garbage label for A14:s3 brought by CREW, et al,. Bmaz as always defends the rules. Rules are hard and when hit upside by them it pains.

  14. wasD4v1d says:

    I was a little confused by the assignation in the head of the decision, where District, City, and County are all mentioned. If it is a District Court in (not of) said city and county, wouldn’t that be a state court? The lack of prepositions is de-clarifying. (Honest question – I’m a musician, not an attorney.)

  15. dadidoc1 says:

    Assuming this ruling advances to the Colorado Supreme Court, I suspect they will find the Presidency of the United States is an “office under the United States”, but because the President was not convicted of insurrection, he will remain on the ballot. If he is subsequently convicted of insurrection, the criteria from would be met and he would be disallowed under the 14th Amendment.

  16. Ken_04JAN2023_2254h says:

    The politicians who wrote the 14th Amendment had the Civil War experience to understand the danger to the Constitution from insurrectionists who would tear apart the country for personal gain.

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  17. Charles Wolf says:

    The 14th says (inter alia) “No person shall be a(n) … elector of President and Vice-President …

    So, can Kamala Harris refuse to count the electoral vote from any elector who participated in Jan6?
    ,,, and if that happened – How would Rightwingnutjoblandia react?

  18. Rayne says:

    U.S. Constitution, Article I, Section 4: Elections

    The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

    Until Congress legislates otherwise, each state determines how their elections are run. If a state’s election laws disqualify candidates while not discriminating against them, so be it; this is how our democracy has functioned under this Constitution. But both Congress and state legislatures have failed to tighten the holes in election laws to prevent a lifelong scofflaw from abusing this democracy. It should have been addressed after the House January 6 investigation and hearing, and should be taken up again if Congress and the White House ever realign.

    Very difficult to credibly demand a country like Ukraine adopt and implement anti-corruption measures in governance when the U.S. can’t stop a corrupt asshat from running for the highest office.

    • bmaz says:

      If their state laws challenge their own candidates, fine. Let us please not have single states defining presidential elections. And, no, there is no reason to allow that.

      • Rayne says:

        And yet *taps on Article I, Section 4*

        It’s just as much overreach for a single state judge to decide Trump was not an officer under Article I, Section 3, deciding that a person who sought to overthrow the U.S. government cannot therefore be ineligible for a federal election — and yet that’s not a problem for you.

  19. steverino_g says:

    Perhaps a rookie question, but I don’t think I’ve seen it discussed: When framing this as a constitutional rights issue, would it help if it were discussed not just from the perspective of someone’s right to be on the ballot when they have the money and support to be there, but (perhaps more importantly), from the perspective of everyone else’s constitutionally guaranteed voting rights? Do the MAGA hats have a constitutional right to see their candidate on the ballot if we can’t more formally and unequivocally throw the book at their chosen candidate for insurrection? In other words, is this 14th amendment section 3 stuff in conflict with some other part of the constitution guaranteeing this rights of voters? There are sometimes examples of the Constitution being in conflict with itself, yes? (press freedom sometimes conflicts with right to a fair trial, for example). This is something that has crossed my mind when I’ve heard someone thumping the exact language of the 14th amendment word by word… are they looking at all the other parts of the Constitution or just this one part?

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. It’s been a while since you commented last; I’m going to assume this username is an updated one to meet the site’s 8-letter minimum standard. Thanks. /~Rayne]

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