Judge says Trump ‘engaged in an insurrection’ before making a curious ruling

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If you’re looking for fresh evidence how we’re sleepwalking toward fascism, look no further than the pre-holiday court ruling which decreed that even though Donald Trump is an insurrectionist who “acted with the specific intent to incite political violence” on Jan. 6, he still belongs on the 2024 ballot – despite the constitutional provision that bars insurrectionists from seeking power.

This Nov. 17 ruling, in Colorado, is a classic example of how our supposedly durable institutions are failing us at one of the most crucial junctures in American history. It’s like saying, “The defendant is guilty of robbing banks, but we have to let him go free. We can’t punish him because the laws against robbery don’t mention banks.”

A group of Colorado voters recently sued to keep Trump off the state’s primary ballot, rightly citing the U.S. Constitution’s 14th amendment, which unequivocally declares that “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…shall have engaged in insurrection or rebellion against the same.”

Similar disqualification efforts are pending in at least 16 other states.

A Colorado district judge, Sarah Wallace, got the case. After meticulously sifting the factual evidence, she concluded beyond a reasonable doubt that “Trump materially aided the attack on the Capitol,” that he “acted with the specific intent to invite violence and direct it at the Capitol with the purpose of disrupting the electoral certification” of Joe Biden’s victory.

Bottom line: “Trump engaged in an insurrection on Jan. 6, 2021 through incitement.”

Then she got cold feet.

She inexplicably concluded the aforementioned 14th amendment allows an insurrectionist to run for president. In her words, “there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification” – despite the specific language that prohibits any officer of the United States from holding any office if that officer engaged in insurrection.

Don’t words matter anymore?

In what conceivable universe is the office of the president not covered by the words any office, civil or military, under the United States?

My beef is shared by principled conservatives who believe in the literal meaning of words and phrases and sentences. Two such legal scholars, William Baude and Michael Stokes Paulson, recently assessed the 14th amendment and concluded that of course the presidency meets the definition of any office. They write, “At the risk of belaboring the obvious: Article II (of the Constitution) refers to the ‘office’ of President innumerable times. It specifies the length of term for which the President ‘holds his Office,’ certain minimum qualifications for eligibility ‘to that Office,’ what happens upon the President’s removal ‘from Office,’ or inability to discharge ‘the Powers and Duties of said Office,’ and the oath he shall take before entering ‘on the Execution of his Office.’ If the Presidency is not an office, nothing is.”

One of our most eminent conservatives, former federal appeals judge J. Michael Luttig, was clearly blown away by the ruling that keeps Trump on the ballot: “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 plain that the entire purpose of (the 14th amendment), confirmed by its literal text, is 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.

The Colorado voters who sued to keep Trump off the ballot are appealing Judge Wallace’s decision, understandably so. Rather than follow the logic of her own decision, Wallace let Trump off on a technicality thinner than a thread of dental floss, and kicked the can to the higher courts. Maybe she really believed that her splitting of hairs was prudent; maybe she was worried about the death threats that would inevitably flow in if she’d disqualified the insurrectionist.

Granted, it’s great that Trump has finally been branded an insurrectionist in a court of law – a finding that may buttress Jack Smith’s criminal case in the Washington trial slated for March. But we’re engaged in a war to save democracy, and institutional timidity won’t cut it. Fascists feast on loopholes.

Copyright 2023 Dick Polman, distributed exclusively by Cagle Cartoons newspaper syndicate.

Dick Polman, a veteran national political columnist based in Philadelphia and a Writer in Residence at the University of Pennsylvania, writes at DickPolman.net. Email him at [email protected]